PainTheory Terms of Service

Version 2.0: Last Modified on October 10, 2018.

PainTheory and PainTheory Telehealth Services

PainTheory is an online tool to help patients research and find healthcare providers to treat issues associated with spine, joint, and other musculoskeletal pain. Any decision to schedule with one of the providers on this page is at the sole discretion of the patient visitor. PainTheory Telehealth Services connect Patient Members with Doctors who educate patients on my symptoms, potential diagnoses of pain, potential treatment options, and suggestions for the best types of specialist doctor to consider after a telehealth consultation. All services are designed to help you feel good and live a happier, healthier life. PainTheory and PainTheory Telehealth Services are different services available through the same Site, and additional terms of use apply to PainTheory Telehealth Services.

1. Modification

PainTheory reserves the right to make changes to the Site, these Terms and other policies. If PainTheory makes material changes to these Terms or other policies, then PainTheory will either notify you by email or by posting a notice on the Site prior to the effective date of the changes. PainTheory will also indicate at the bottom of this page the date these Terms were last updated. These Terms are effective upon acceptance by new users. For current users, these Terms are effective as of August 7, 2018 and supersede all previous versions of the PainTheory Terms of Service. If any section or portion of these Terms shall be deemed invalid, void or for any reason unenforceable, then that section of the Terms shall be deemed severable and shall not affect the validity of the remaining condition. Your continued use of the Site after any such changes are posted constitutes your acceptance of the new Terms. If you do not agree to abide by these or any future terms, you may not use or access the Site.

2. Medical Advice

General PainTheory Site Use

The content (which includes any text, graphics, images or other material contained, accessed or entered on the Site by you or a healthcare provider (“Content”) is for educational/informational purposes only and is not a substitute for medical advice, diagnosis or treatment provided by a qualified healthcare provider. Any communication between you and Care Providers on the Site (including any responses by Care Providers to questions posted on the Site or through any feature available on the Site) is for general informational purposes only and does not create nor is it intended to create a physician-patient relationship as defined by federal and state law. Your reliance on any information (including any links to third party websites containing any information about Care Providers) or Content provided on the Site, whether or not it is provided by a healthcare provider, is solely at your own risk. You should always seek the advice of your healthcare provider for any questions you may have about your own medical condition.

PainTheory Telehealth Services

PainTheory Telehealth Services do support physician-patient relationships. PainTheory Telehealth Services may be used where an ongoing doctor-patient relationship exists, and a temporary doctor-patient relationship is created by the use of PainTheory Telehealth Services.

3. How and When You May Use the Site

General PainTheory Site Use

You may use the Site only to post reviews based on your own personal experience, to communicate with other Patient Members about questions on spine, joint, bone, pain, or other musculoskeletal issues/treatments and to post questions on the Site. You may only use the Site for personal, non-commercial uses, and you may not use the Site to advertise or promote a product, service, procedure, business, healthcare provider or another person. You may not use the Site:

• – If you are under 18.

• – In any way or for any purpose that is against any local, state, federal or any other applicable laws.

• – In any way or for any purpose that harms or endangers us or our affiliates, resellers, distributors, service providers and/or suppliers (collectively, the “PainTheory Partners”), or any customer of a PainTheory Partner;

• – To exploit, solicit or harm minors;

• – To copy any Content from the Site, including, but not limited to, photographs, and post those photographs or other Content on another third-party website.

• – To post or submit any Content that is racist, sexist, inflammatory, defamatory, hateful, harassing, threatening, abusive, profane, obscene, vulgar or sexually explicit, false, misleading, fraudulent, invasive of another’s privacy or publicity rights, infringing of another’s intellectual property rights, contains any trade secrets or other confidential information, or otherwise offensive or objectionable;

• – To promote, encourage or glorify violence, self-harm, suicide, anorexia, bulimia, or any other practice that is unhealthy or harmful;

• – To post your name, email address(es) or telephone number(s), URL(s) or any other confidential or personally identifiable information about you or any other person on the Site;

• – To provide or purport to provide medical advice, prescription, diagnosis, or treatment recommendations;

• – To register for multiple accounts or use the account of another person without their authorization;

• – To impersonate or pretend to be any person other than yourself, including to impersonate or pretend to be a healthcare provider;

• – To attempt to solicit business or direct website visitors to a non-PainTheory site for commercial purposes or spamming any PainTheory Care Providers, Patient Members or other users;

• – You agree not to use any data mining, robots, or similar data gathering and extraction methods in connection with the Site;

• – To post links to sites or files that contain or are viruses, spyware, malware, or other harmful content;

• – To attempt to interfere with or disrupt the Site or any person’s ability to use the Site;

• – To create and upload reviews or comments in exchange for monetary compensation or other incentive; or

• – For any purpose for which the Site is not intended.

We may tell you about certain specific harmful or additional prohibited uses in our Code of Conduct or other notice available through the Site. We have, however, no duty to do so. You agree to abide by any Code of Conduct or other notices we provide, which may be changed from time to time. Without limiting the foregoing, you agree to abide by these Terms, the Code of Conduct and any other policies PainTheory has in place. Any use of the Site other than as specifically authorized herein, without the prior written permission of PainTheory, is strictly prohibited.

In addition, PainTheory is not obligated to enforce these Terms against another user, healthcare provider or other third-party on your behalf. If you believe another user, healthcare provider or other third-party has violated these Terms, then please contact PainTheory by emailing support@paintheory.com. PainTheory reserves the right to investigate the matter and take whatever action PainTheory deems appropriate in its sole discretion.

PainTheory Telehealth Services

The use of PainTheory Telehealth Services is outlined in paintheory.consent to Telehealth.

4. Authorization and Acknowledgement of Care Provider Relationships and Care Provider Lists

In connection with using the Site and the Services to locate and schedule appointments with Care Providers, you understand that: YOU ARE RESPONSIBLE FOR CHOOSING YOUR OWN HEALTHCARE PROVIDER, INCLUDING WITHOUT LIMITATION, DETERMINING WHETHER THE APPLICABLE HEALTHCARE PROVIDER IS SUITABLE FOR YOUR HEALTHCARE NEEDS BASED ON SPECIALTY, EXPERIENCE, QUALIFICATION, LICENSES AND OTHER IMPORTANT FACTS AND CIRCUMSTANCES THAT COULD IMPACT YOUR CARE.

PainTheory does not currently take steps to (a) verify that Care Providers participating in the Services hold certain active licenses, certifications or registrations required by law to practice the specialties of the services offered by them through the Services, or (b) verify that Care Providers are not listed in the U.S. Department of Health and Human Services Office of the Inspector General Exclusion database. PainTheory may exclude Care Providers from our Services who, in PainTheory’s discretion, have engaged in inappropriate or unprofessional conduct.

Some Care Providers listed through the Services enter into contracts with us, and may pay us a fee in order to be marketed through or to use the Services. To help you find Care Providers who may be suitable for your needs, and enable the maximum choice and diversity of Care Providers participating in the Services, we will provide you with lists and/or profiles of Care Providers. These results are based on information you provide to us, such as insurance information, geographical location, healthcare specialty, condition, treatment option, etc.. They may also be based on other criteria (including, for example, Healthcare Provider availability, past selections by and/or ratings of Care Providers by you or by other PainTheory users, and past experience of PainTheory users with Care Providers). Note that PainTheory (a) does not recommend or endorse any Care Providers, and (b) does not make any representations or warranties with respect to these Care Providers or the quality of the healthcare services they may provide. We may show you advertisements or sponsored results (“Sponsored Results”) as a part of the PainTheory Verified Provider Program (“Verified Provider Program”). These results may show up in numerous areas on the site and may also appear above search results labeled “PainTheory Verified Provider.” PainTheory receives additional fees from Care Providers for providing Sponsored Results via the Verified Provider Program. Sponsored Results shown through the Verified Provider Program are not, and should not be considered, an endorsement or recommendation by PainTheory of the Healthcare Provider.

5. Your User Account; Email Consent

In order to use some of the features on the Site, you are required to register and provide information about yourself to us and create a User Account (“User Account”). It is your responsibility to maintain the confidentiality of your User Account information, including your User Account password. In addition, you are responsible for all activities that occur in connection with your User Account. You must tell us right away about anyone using your User Account without your consent, or any security breach that relates to the Site or your User Account. You agree to provide PainTheory with accurate, current and complete information about yourself as may be prompted in any registration forms on the Site and promptly update any such information to keep it accurate, current and complete. PainTheory reserves the right to refuse to provide services to anyone, including terminating your User Account and/or preventing you from accessing the Site or your User Account, with or without cause, at any time and in its sole discretion.

By using the Site, you consent to receive emails from PainTheory, which may include commercial emails provided such emails are in accordance with the preferences you select in the email and notifications page of the My Profile section of the Site or by emailing support@paintheory.com. You may change such preferences by changing your account settings on the email and notifications page of the My Profile section of the Site or via the unsubscribe link in all commercial emails. Please note that as long as you maintain a User Account, you may not “opt out” of receiving service or account-related emails from PainTheory and all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

6. Materials You Post or Provide; Communications Monitoring

You may be able to post or submit reviews, comments, questions, direct messages, photographs, videos (including videos created through a third-party tool) and other materials on or through the Site (collectively, “Submission” or “Submissions”). Your Submissions, (including to the extent applicable personally identifiable information), are made voluntarily and are subject to the paintheory.code of Conduct and the PainTheory Privacy Policy. You understand PainTheory is not required to treat any of your Submissions as confidential. In addition, you understand and agree that your Submissions (including your username associated with your Submissions) are not confidential and are publicly available for anyone to view on the Site.

PainTheory does not claim ownership of the Submission(s) you post or submit on the Site. With the exception of any information you directly submit through a healthcare provider’s profile or inquiry form, by posting or otherwise providing your Submission on the Site, you are hereby expressly granting PainTheory a nonexclusive, irrevocable, worldwide, perpetual, royalty free license (including sublicense) to use, copy, distribute, publicly display, publicly perform, modify (including create derivative works) or transmit (including digital transmission of a sound recording) your Submission, in connection with the Site and the PainTheory business, including without limitation promoting and redistributing part or all of the Site or the PainTheory business, in any media formats and through any media channels now known or hereafter developed. You also grant PainTheory permission to publish and use your name, likeness and voice in connection with your Submission. In addition, by uploading a Submission to the Site, you hereby waive any rights of privacy or publicity. You also grant PainTheory the right to grant any of the above rights to other persons or entities, including for the purpose of promoting the Site or the PainTheory business, without any compensation or obligation to you. You also grant PainTheory the right and authority to send takedown notices (on your behalf) related to your Submission to any individual or entity under the Digital Millennium Copyright Act.

PainTheory will not pay you for your Submission. You also understand and agree that PainTheory may, in its sole discretion, refuse, or remove part or all of your Submission from the Site at any time if paintheory.considers the Submission to be illegal, offensive, harassing, infringing, inappropriate or otherwise violates these Terms or the paintheory.code of Conduct or other policies. For each Submission, you represent and warrant that you have all rights necessary for you to post or submit the Submission and to grant the licenses and permissions in this section and that you are solely responsible for the content of your Submission. Further, you represent and warrant that your Submission does not violate any law.

PainTheory reserves the right to review and monitor Submissions but is under no obligation to do so. In addition, PainTheory is not responsible for screening, monitoring or editing Submissions. However, we may monitor your Submissions and may disclose information about you, including the contents of such Submission, if we deem it necessary to: (1) conform to legal requirements or respond to legal process; (2) ensure your compliance with these Terms or other PainTheory guidelines or policies; or (3) protect the rights, property, or interests of PainTheory, its employees, its users, or the public.

You may also request information directly from a specific healthcare provider by submitting an inquiry through their profile or inquiry form. You understand these requests, including personally identifiable information, are made voluntarily and are subject to the PainTheory Privacy Policy. There is no guarantee that a healthcare provider will respond to any request submitted through their profile or inquiry form. In addition, by submitting a request to a healthcare provider through the Site, you understand that PainTheory may contact you by phone, email or text message about your request. All standard message and data charges will apply to any text messages.

7. Reviews or Content Posted by Others

PainTheory does not have any responsibility, including editorial control, of any content posted by other PainTheory Patient Members, Care Providers or other third party content providers on the Site. The statements or content posted by PainTheory Patient Members, Care Providers or other third party content providers on the Site are those of the Patient Members, Care Providers or other third party content providers and are not the opinion of PainTheory. PainTheory does not make any representations or warranties about the accuracy or reliability of the content, including the opinions, statements or information posted by the PainTheory Patient Members, Care Providers or other third party content providers on the Site. The PainTheory Patient Members, Care Providers and other third party content providers are solely responsible for the content posted by them respectively.

PainTheory does not endorse or recommend any specific content, procedures, products, opinions, Care Providers or any other material or information available on the Site. In addition, the Care Providers featured on the Site are not employees or independent contractors of PainTheory and PainTheory does not make any warranties about the qualifications of the Care Providers or the costs of the procedures or products featured on the Site.

8. Copyright Policy

If you believe that your Submission or any other work has been used in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please notify Sway Health, Inc. at support@paintheory.com. Provide all of the following in writing: (1) identify the copyrighted work you claim has been infringed or if multiple copyrighted works, then a representative list of such works on the website; (2) identify the material on the website that you claim is infringing and with enough detail so that we may locate the material; (3) provide a statement that you have a good faith belief that the use of the material on the website is not authorized by the copyright owner, its agent, or the law; (4) provide a statement declaring that the notification is accurate, and, under penalty of perjury, that you are the owner of the copyright interest involved or that you are authorized to act on behalf of the exclusive owner; (5) provide information reasonably sufficient to permit PainTheory to contact you, such as an address, telephone number, and email address; and (6) your physical or electronic signature. Upon receipt of notice as described above, PainTheory will take whatever action, in its sole discretion, it deems appropriate, including removal of the alleged infringing material from the website.

9. Photograph/Video Policy

Care Providers must have consent from individuals and comply with all applicable laws (as well as the CP Terms, Privacy Policy, Code of Conduct and the healthcare Provider Photo & Video Guidelines) before uploading, submitting or posting any photographs or videos of individuals on the Site. If a healthcare provider or other third-party has submitted, uploaded or posted a photograph or video of you on the Site and you want that photograph or video removed from the Site, please contact PainTheory at support@paintheory.com. Please provide the following information about the photograph or video in order for PainTheory to be able to identify the photograph: (1) identify the photograph and provide PainTheory with enough detail about the photograph so PainTheory can locate it on the Site; (2) provide a statement that you have a good faith belief that the photograph is of you and was either not authorized to be uploaded, posted or submitted to PainTheory or your healthcare provider had permission to upload, post or submit the photograph but you no longer want the photograph displayed on the PainTheory Site; (3) provide a statement declaring that the notification is accurate, and, under penalty of perjury, that you are the person in the photograph or that you are authorized to act on behalf of the person in the photograph; (4) provide information reasonably sufficient to permit PainTheory to contact you, such as an address, telephone number, and email address and (5) your physical or electronic signature.

10. Links to Other Websites; Third Party Promotions

The Site may contain links to other websites maintained by third parties (“Third Party Website”) or you may be able to log into the Site through a Third Party Website. Third Party Websites are not under the control of PainTheory and PainTheory does not endorse or assume any responsibility for the content, information or functionality of any Third Party Website. As a result, your access or use of any Third Party Website is at your own risk and these Terms, Privacy Policy, Code of Conduct and any other policies do not apply or govern any Third Party Website. You expressly relieve PainTheory of any and all liability related to the functionality, content or information contained on any Third Party Website. In addition, your dealings with or participation in promotions of third parties (including Care Providers) found on the Site, including payment and delivery of goods or services or any other terms (such as warranties) are solely between you and the third parties. You agree that PainTheory shall not be responsible to you for any loss or damage of any kind relating to your dealings with such third parties.

11. PainTheory Intellectual Property Rights

PainTheory grants you a limited, personal, revocable, non-assignable and non-exclusive license to use the Site. PainTheory owns the text, photographs, videos, visual interfaces, interactive features, graphics, design, compilation, computer code, products, software, decision algorithms, and all other elements and components of the Site (“paintheory.content”), excluding your Submissions. PainTheory owns the copyrights, trademarks, service marks, trade names and other intellectual property and proprietary rights throughout the world associated with the paintheory.content and the Site which are protected by copyright, trade dress, patent, trademark laws and all other applicable intellectual and proprietary rights and laws. You may not modify, reproduce, republish, frame, download, transmit, distribute, rent, lease, loan, sell, assign, license, sublicense, reverse engineer, disassemble, publicly display or create derivative works based on any of the paintheory.content in whole or in part, or the Site except as expressly authorized in writing by PainTheory. In addition, PainTheory does not grant any express or implied rights in and to the Site or paintheory.content, and all rights in and to the Site and the paintheory.content, are retained by PainTheory.

12. PAINTHEORY DISCLAIMS ALL WARRANTIES

PAINTHEORY PROVIDES THE SITE, THE paintheory.coNTENT AND ALL INFORMATION, MATERIALS AND OTHER CONTENT AVAILABLE ON THE SITE ON AN “AS IS” AND “AS AVAILABLE” BASIS “WITH ALL FAULTS.” PAINTHEORY DISCLAIMS ALL WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED) AS WELL AS ANY GUARANTEES OR CONDITIONS RELATED TO THE SITE. WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED BY LAW, PAINTHEORY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT AND NON-INFRINGEMENT. PAINTHEORY DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ANY ELECTRONIC COMMUNICATION FROM PAINTHEORY WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR DEFECTS. IN ADDITION, PAINTHEORY EXPRESSLY DISCLAIMS ANY AND ALL RESPONSIBILITY AND LIABILITY WITH RESPECT TO SEPARATE AGREEMENTS YOU MAY MAKE WITH CARE PROVIDERS, PAINTHEORY DOCTORS, OR OTHER THIRD PARTIES AND YOU WILL LOOK SOLELY TO SUCH PERSONS AND/OR ENTITIES WITH RESPECT TO ANY AND ALL CLAIMS ARISING OUT OF SUCH AGREEMENTS. FURTHER, PAINTHEORY DOES NOT REPRESENT OR WARRANT THAT THE SITE OR THE CONTENT AVAILABLE ON THE SITE WILL ASSIST YOU IN FINDING A SUITABLE HEALTHCARE PROVIDER OR FOR ANY OTHER PURPOSE. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE IS ENTIRELY AT YOUR OWN RISK. WHILE PAINTHEORY TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE PAINTHEORY SITE, PAINTHEORY DOES NOT GUARANTEE THAT THE PAINTHEORY SITE CANNOT BE COMPROMISED.

13. LIABILITY LIMITATION; YOUR EXCLUSIVE REMEDY

TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL PAINTHEORY OR THE PAINTHEORY PARTNERS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED, TO LOSS PROFITS AND DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY OR LOSS OF USE) ARISING OUT OF OR RELATING TO THE USE OF THE SITE EVEN IF PAINTHEORY OR ANY OF THE PAINTHEORY PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, IN NO EVENT SHALL PAINTHEORY BE LIABLE TO YOU OR TO ANYONE FOR ANY DECISION MADE OR ACTION TAKEN BY A PARTY (INCLUDING, WITHOUT LIMITATION, BY ANY USER OR PATIENT MEMBER) IN RELIANCE ON ANY CONTENT, TREATMENT PLAN RECOMMENDATION, OR OTHER INFORMATION ABOUT CARE PROVIDERS OR PROCEDURES POSTED ON THE SITE. PAINTHEORY SHALL NOT BE LIABLE FOR ANY DAMAGES, DELAYS, OR NON-PERFORMANCE CAUSED BY FACTORS OR ACTIVITIES BEYOND ITS REASONABLE CONTROL, INCLUDING DELAYS AND NONPERFORMANCE CAUSED BY VIRUSES, DENIAL OF SERVICE ATTACKS, OTHER ACTS OR OMISSION OF THIRD PARTIES, INTERNET SERVICE PROVIDER FAILURES, STRIKES, LOCKOUTS, WORK SLOWDOWNS OR STOPPAGES, ACCIDENTS, FIRES, TERRORISM, ACTS OF GOD, GOVERNMENT RESTRICTIONS, MECHANICAL, ELECTRONIC OR COMMUNICATIONS FAILURES, WAR OR INSURRECTION.

REGARDING THE USE OF PAINTHEORY TELEHEALTH SERVICES, PAINTHEORY DOCTORS AGREE TO INDEMNIFY AND HOLD SWAY HEALTH, INC. AND PAINTHEORY MEDICAL GROUP HARMLESS FROM ANY AND ALL CLAIMS AND DAMAGES RELATED TO THE USE OF TELEHEALTH SERVICES OR RECOMMENDATIONS PROVIDED BY DOCTORS, INCLUDING WITHOUT LIMITATION FOR ALL MEDICAL MALPRACTICE CLAIMS WHICH MAY BE BROUGHT BY PATIENTS.

NOTWITHSTANDING ANYTHING IN THESE TERMS, THE AGGREGATE LIABILITY OF THE PAINTHEORY PARTNERS TO YOU IN CONNECTION WITH THE SITE (INCLUDING ANY THIRD PARTY CONTENT ON THE SITE) AND THESE TERMS WILL BE LIMITED TO THE AMOUNT, IF ANY, PAID BY YOU TO PAINTHEORY FOR USE OF THE SITE IN THE SIX (6) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF PAINTHEORY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES.

Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.

14. Changes to the Site; Updates; Suspension of Your Use of the Site; User Account Closure

We may change the Site or delete features of the Site at any time and for any reason without notice in our sole discretion. We are not obligated to provide maintenance, technical support or updates to you for the Site, but we may provide these in our discretion. We may terminate or suspend your use of the Site at any time in our discretion. Our termination or suspension may be without cause and/or without notice. You may terminate your use of the Site and close your User Account at any time, with or without cause, by emailing us at support@paintheory.com. Upon termination, your right to use the Site ceases immediately. Once your use of the Site is terminated or suspended, any data you have stored on the Site may not be retrieved later. In addition, even if you stop using the Site or your account is suspended by PainTheory, PainTheory may continue to show some or all of your Submissions.

15. Jurisdiction

paintheory.controls and operates the Site from its offices in Denver, Colorado in the United States and PainTheory does not represent that the Site, the Content, the paintheory.content or the Submissions by either Care Providers or Patient Members, are appropriate, available or may be downloaded for use outside the United States. If you are located outside the United States and you use the Site and the Service, then you are responsible for complying with all of your local laws if and to the extent your local laws are applicable. These Terms and the Site are governed by United States federal law and the laws of the State of Colorado, excluding any conflicts of law provisions. Registering for a User Account, accessing, browsing or otherwise using the Site means you hereby consent to the exclusive jurisdiction of the state and federal courts in Denver County, Colorado and you waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Denver County, Colorado.

16. Indemnification

You agree to indemnify and hold harmless PainTheory and the PainTheory Partners from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorneys’ fees, arising out of or in connection with: (a) your Submissions or any other Content you post or submit to or through the Site; (b) your use of the Site; (c) your conduct in connection with the Site or with other users of the Site, and; (d) any violation of these Terms, any other PainTheory policy or of any law or the rights of any third party.

17. Claim Must Be Filed Within One Year; Arbitration

Any dispute, claim or controversy arising out of or relating to these Terms, PainTheory or the Site or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of these Terms to arbitrate, shall be determined by final and binding arbitration as the sole and exclusive remedy for such controversy or dispute. Any claim shall be made by filing a demand for arbitration within one (1) year following the event first giving rise to the claim. The arbitration shall be held in Denver County, Colorado before one arbitrator. The arbitration shall be governed by the Federal Arbitration Act and the arbitration shall take place according to the rules of the American Arbitration Association. Judgment on the Award may be entered in any court having jurisdiction. Each party shall bear all of its own costs of arbitration except the fee for the arbitrator shall be equally split between the parties. The arbitrator shall not have the authority to modify these Terms or award punitive or exemplary damages to either party. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Seeking any such remedies shall not constitute a waiver of either party’s right to compel arbitration.

18. Your Notices to Us

You may contact us by e-mail at support@paintheory.com.

19. Our Notices to You; Consent Regarding Electronic Information

This contract is in electronic form. There may be other information regarding the Site that the law requires us to send you. You agree that we may send you this information in electronic form. You have the right to withdraw this consent, but if you do, we may terminate your ability to use the Site. We may provide required information to you (1) via e-mail at the e-mail address you specified when you signed up for the Site (or subsequently provided when updating your account information), (2) by access to a PainTheory website that will be designated in an e-mail notice sent to you at the time the information is available, or (3) by access to a PainTheory website that will be generally designated in advance for this purpose. Notices provided to you via e-mail will be deemed given and received on the transmission date of the e-mail. As long as you access and use the Site, you will have the necessary software and hardware to receive these notices. If you do not consent to receive any notices electronically, you must stop using the Site immediately.

20. Miscellaneous

These Terms constitute the entire agreement between you and PainTheory regarding the use of the Site, and supersedes any prior agreements between you and PainTheory relating to your use of the Site. The failure of PainTheory to exercise or enforce any right or provision of these Terms or any prior version of these Terms shall not constitute a waiver of such right or provision in that or any other instance. If any provision of these Terms is held invalid, the remainder of these Terms shall continue in full force and effect. If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814 or by telephone at (800) 952-5210. Sections 5, 12-20 shall survive the termination of these Terms.

1. Modification

PainTheory reserves the right to make changes to the Site, these CP Terms and other policies at any time, including but not limited to charging fees at any time for the Site. If PainTheory makes material changes to these CP Terms or other policies, then PainTheory will either notify you by email or by posting a notice on the Site prior to the effective date of the changes. PainTheory will also indicate at the bottom of this page the date these CP Terms were last updated. These CP Terms are effective upon acceptance by new users. For current users, these CP Terms are effective as of August 7, 2018 and supersede all previous versions of the PainTheory CP Terms or any other PainTheory terms of service that you accepted when you registered for an account with PainTheory. If any section of these CP Terms shall be deemed invalid, void or for any reason unenforceable, then that section shall be deemed severable and shall not affect the validity of the remaining sections of these CP Terms. Your continued use of the Site after any such changes are posted constitutes your acceptance of the new CP Terms. If you do not agree to abide by these or any future CP Terms, you may not use or access the Site.

2. Your Care Provider Account; Email Consent

In order to use some of the features on the Site, including updating and adding content to a healthcare provider profile or a practice profile, you are required to register and provide information about yourself to PainTheory and create a verified healthcare provider account (“CP Account”). It is your responsibility to maintain the confidentiality of your account information, including your CP Account password and you are responsible for all activities that occur in connection with your CP Account. In addition, Care Providers may claim and create a healthcare provider profile page on the Site. The healthcare provider profile pages are subject to the Care Provider Listing Criteria. In creating your care provider profile page, you agree that any information submitted by you and posted to your healthcare provider profile page is accurate, true and correct. In addition, you agree to keep the information on your healthcare provider profile page updated. You are responsible for all activities that occur in connection with your healthcare provider profile page. You must tell us right away about anyone using your CP Account or healthcare provider profile page without your consent, or any security breach that relates to your CP Account or healthcare provider profile page.

By using the Site, you consent to receive emails from PainTheory, which may include commercial emails provided such emails are in accordance with the preferences you select in the email and notifications page of your CP Account. You may change such preferences by changing your account settings on the notifications page of the “My Profile” section in your CP Account or via the unsubscribe link in all commercial emails. You may also change email and notification preferences by emailing your request to support@paintheory.com. Please note that as long as you maintain an account, you may not “opt out” of receiving service or account-related emails from PainTheory.

PainTheory reserves the right to refuse providing services or the Site to anyone, including terminating your CP Account and/or preventing you from accessing the Site or your CP Account, with or without cause, at any time and in its sole discretion.

3. How and When You May Use the Site

As a healthcare provider, you may use the Site to respond to Patient Members’ questions and to create a healthcare provider profile or practice profile, (including, uploading photos, videos and articles to your profile). You or an authorized representative from your office may claim your healthcare provider profile or practice profile on the Site but you may not post false or misleading information on your profile.

4. Materials You Post or Provide; Communications Monitoring; Confidentiality

As a healthcare provider, you may be able to post or submit comments, answers to Patient Members’ questions, direct messages, photographs, videos (including videos created through a third-party tool) and other materials on or through the Site (“CP Content”). You understand your CP Content is not confidential and is publicly available for anyone to view and the CP Content posted by you must be in compliance with all applicable privacy laws (including, but not limited to, the Health Insurance Portability and Accountability Act (“HIPAA”)). Further, PainTheory is not responsible for the security of any information transmitted through the internet or the Site. You also understand that any CP Content posted by you may not violate these CP Terms (including section 3 of these CP Terms) or any other guidelines and policies of PainTheory as well as any applicable federal, state or local laws (including, but not limited to the rules and laws of state medical boards) and the information you provide must not be false, inaccurate or misleading. PainTheory does not claim any ownership rights in your CP Content. However, by submitting CP Content on the Site you are hereby expressly granting PainTheory a nonexclusive, irrevocable, worldwide, perpetual, royalty-free license (including sublicense) to use, copy, distribute, publicly display, publicly perform, modify (including create derivative works) or transmit (including digital transmission of a sound recording, if applicable) your CP Content, in connection with the the Site, any PainTheory App and the PainTheory business, including without limitation promoting and redistributing part or all of the Site, any PainTheory App or the PainTheory business, in any media formats and through any media channels now known or hereafter developed without any compensation or obligation to you. You also grant PainTheory permission to use your name, likeness and voice in connection with your CP Content. In addition, by posting or uploading CP Content to the Site, you hereby waive any rights of privacy or publicity. You also grant PainTheory the permission to grant any of the above rights to other persons or entities, including, but not limited, for the purpose of promoting the Site, any PainTheory App or the PainTheory business without any compensation or obligation to you. You also grant PainTheory the right and authority to send takedown notices (on your behalf) related to your CP Content to any individual or entity under the Digital Millennium Copyright Act. In addition, for each CP Content you post or submit, you represent and warrant that you have all rights and permission necessary for you to post or submit the CP Content and to grant the licenses and permissions in this section. Further, you represent and warrant that the CP Content does not violate any law. You also understand and agree that PainTheory may, in its sole discretion, refuse, or remove part or all of your CP Content from the Site at any time. PainTheory reserves the right to review and monitor CP Content but is under no obligation to do so. In addition, PainTheory is not responsible for screening, monitoring or editing the CP Content. PainTheory may disclose information about you, including the contents of such CP Content, if we deem it necessary to: (1) conform to legal requirements or respond to legal process; (2) ensure your compliance with these CP Terms or other PainTheory guidelines or policies; or (3) protect the rights, property, or interests of PainTheory, its employees, its Patient Members, its partners or the public.

5. Reviews or Content Posted by Others

PainTheory does not have any responsibility, including editorial control, of any content posted by other PainTheory Patient Members, Care Providers or other third party content providers on the Site. The statements or content posted by PainTheory Patient Members, Care Providers or other third party content providers on the Site are those of the Patient Members, Care Providers or other third party content providers and are not the opinion of PainTheory. PainTheory does not make any representations or warranties about the accuracy or reliability of the content, including the opinions, statements or information posted by the PainTheory Patient Members, Care Providers or other third party content providers on the Site. The PainTheory Patient Members, Care Providers and other third party content providers are solely responsible for the content posted by them respectively.

PainTheory does not endorse or recommend any specific content, procedures, products, opinions, Care Providers or any other material or information available on the Site. In addition, the Care Providers featured on the Site are not employees or independent contractors of PainTheory.

There may be medical-related or health-related materials posted by PainTheory Patient Members, Care Providers or other third parties that may contain nudity. If you find these materials to be offensive, then you may want to use the Site in such a way as to limit your viewing of this material.

6. Copyright Policy

If you believe that your CP Content or any other content has been used in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please notify Sway Health, Inc. at support@paintheory.com. Provide all of the following in writing: (1) identify the copyrighted work you claim has been infringed or if multiple copyrighted works, then a representative list of such works on the Site; (2) identify the material on the Site that you claim is infringing and with enough detail so that we may locate the material; (3) provide a statement that you have a good faith belief that the use of the material on the Site is not authorized by the copyright owner, its agent, or the law; (4) provide a statement declaring that the notification is accurate, and, under penalty of perjury, that you are the owner of the copyright interest involved or that you are authorized to act on behalf of the exclusive owner; (5) provide information reasonably sufficient to permit PainTheory to contact you, such as an address, telephone number, and email address; and (6) your physical or electronic signature. Upon receipt of notice as described above, PainTheory will take whatever action, in its sole discretion, it deems appropriate, including removal of the alleged infringing material from the Site.

7. Photograph/Video Policy

Care Providers must have consent from individuals and follow all HIPAA requirements (as well as these CP Terms, Care Provider Code of Conduct and Care Provider Photo & Video Guidelines) before uploading, submitting or posting any photographs or videos (including the use of any third-party video tool whether or not provided by PainTheory) of individuals on the Site. When you upload or submit any photo or video of an individual, you represent and warrant that you have the appropriate consent and license to do so and the uploading or submission of the videos or photographs to the Site will not violate these CP Terms, the Care Provider Code of Conduct, the Care Provider Photo & Video Guidelines, or any other applicable laws, including any applicable privacy laws (such as HIPAA). You also agree to indemnify PainTheory and the PainTheory Partners against any third-party claims related to the uploading or submitting of any videos or photographs by you or anyone affiliated with you (including an agent, employee of your practice or other third party acting on your behalf).

8. PainTheory Advertising

If you purchase advertising from PainTheory or purchase any PainTheory Special Programs through the Site (including the PainTheory Verified Provider Program or PainTheory Pay Per Click Program), the applicable Terms of Service and Provider User Agreement will apply to you in addition to these CP Terms.

9. Links to Other Websites

The Site and the PainTheory App may contain links to other websites maintained by third parties (“Third Party Website”) or you may be able to log into the Site or the PainTheory App through a Third Party Website. Third Party Websites are not under the control of PainTheory and PainTheory does not endorse or assume any responsibility for the content, information or functionality of any Third Party Website. As a result, your access or use of any Third Party Website is at your own risk and these CP Terms, the PainTheory Privacy Policy, Care Provider Code of Conduct and any other PainTheory policies do not apply or govern any Third Party Website or your use of any Third Party Website. You expressly relieve PainTheory of any and all liability related to the functionality, content or information contained on any Third Party Website. In addition, your dealings with or participation in promotions of third parties found on the Site, including payment and delivery of goods or services any other terms (such as warranties) are solely between you and the third parties. You agree that PainTheory shall not be responsible for any loss or damage of any kind relating to your dealings with such third parties.

10. PainTheory Intellectual Property Rights

PainTheory grants you a limited, personal, revocable, nonassignable and nonexclusive license to use the Site. PainTheory owns the text, photographs, videos, visual interfaces, interactive features, graphics, design, compilation, computer code, products, software, decision algorithms and all other elements and components of the Site (“paintheory.content”), excluding your CP Content and Patient Members’ submissions. PainTheory owns the copyrights, trademarks, service marks, trade names and other intellectual property and proprietary rights throughout the world associated with the paintheory.content and the Site, which are protected by copyright, trade dress, patent, trademark laws and all other applicable intellectual and proprietary rights and laws. You may not modify, reproduce, republish, frame, download, transmit, distribute, rent, lease, loan, sell, assign, license, sublicense, reverse engineer, publicly display or create derivative works based on any of the paintheory.content in whole or in part, or the Site except as expressly authorized in writing by PainTheory. In addition, PainTheory does not grant any express or implied rights in and to the Site and the paintheory.content, and all rights in and to the Site and the paintheory.content, are retained by PainTheory.

11. PainTheory DISCLAIMS ALL WARRANTIES

PAINTHEORY PROVIDES THE SITE “AS IS” “WITH ALL FAULTS” AND “AS AVAILABLE.” YOUR USE OF THE SITE IS AT YOUR OWN RISK. PAINTHEORY DISCLAIMS ALL WARRANTIES (WHETHER EXPRESS OR IMPLIED), GUARANTEES OR CONDITIONS RELATED TO THE SITE. WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED BY LAW, PAINTHEORY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT AND NON-INFRINGEMENT AS WELL AS ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, QUALITY, PERFORMANCE AND SUITABILITY OF THE SITE. PAINTHEORY DOES NOT REPRESENT OR WARRANT THAT THE SITE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR DEFECTS. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE IS ENTIRELY AT YOUR OWN RISK. IN ADDITION, PAINTHEORY EXPRESSLY DISCLAIMS ANY AND ALL RESPONSIBILITY AND LIABILITY WITH RESPECT TO SEPARATE AGREEMENTS YOU MAY MAKE WITH PATIENTS, CONSUMERS, PATIENT MEMBERS OR OTHER THIRD PARTIES, AND YOU WILL LOOK SOLELY TO SUCH PERSONS AND/OR ENTITIES WITH RESPECT TO ANY AND ALL CLAIMS ARISING OUT OF SUCH AGREEMENTS. WHILE PAINTHEORY TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SITE, PAINTHEORY DOES NOT GUARANTEE THAT THE SITE CANNOT BE COMPROMISED.

12. LIMITATION OF LIABILITY; YOUR EXCLUSIVE REMEDY

TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PAINTHEORY OR THE PAINTHEORY PARTNERS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED, TO LOSS PROFITS AND DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY OR LOSS OF USE) ARISING OUT OF OR RELATING TO YOUR USE OF THE SITE EVEN IF PAINTHEORY OR ANY OF THE PAINTHEORY PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, IN NO EVENT SHALL EITHER PAINTHEORY OR THE PAINTHEORY PARTNERS BE LIABLE TO YOU OR TO ANYONE FOR ANY DECISION MADE OR ACTION TAKEN BY A PARTY (INCLUDING, WITHOUT LIMITATION, BY ANY USER OR PATIENT MEMBER) IN RELIANCE ON ANY CONTENT OR OTHER INFORMATION ABOUT CARE PROVIDERS OR PROCEDURES POSTED ON THE SITE. PAINTHEORY AND THE PAINTHEORY PARTNERS SHALL NOT BE LIABLE FOR ANY DAMAGES, DELAYS, OR NONPERFORMANCE CAUSED BY FACTORS OR ACTIVITIES BEYOND THEIR REASONABLE CONTROL, INCLUDING DELAYS AND NONPERFORMANCE CAUSED BY VIRUSES, DENIAL OF SERVICE ATTACKS, OTHER ACTS OR OMISSION OF THIRD PARTIES, INTERNET SERVICE PROVIDER FAILURES, STRIKES, LOCKOUTS, WORK SLOWDOWNS OR STOPPAGES, ACCIDENTS, FIRES, TERRORISM, ACTS OF GOD, GOVERNMENT RESTRICTIONS, MECHANICAL, ELECTRONIC OR COMMUNICATIONS FAILURES, WAR OR INSURRECTION.

NOTWITHSTANDING ANYTHING HEREIN, THE AGGREGATE LIABILITY OF PainTheory TO YOU IN CONNECTION WITH THE SITE (INCLUDING ANY THIRD PARTY CONTENT ON THE SITE) AND THESE CP TERMS WILL BE LIMITED TO THE AMOUNT, IF ANY, PAID BY YOU TO PAINTHEORY IN THE SIX (6) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF PAINTHEORY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES.

Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.

13. Changes to the Site; Updates; Termination

We may change the Site or delete features available on the Site at any time and for any reason. We are not obligated to provide maintenance, technical support or updates to you for the Site, but we may provide these in our discretion. We may terminate or suspend your CP Account and your use of the Site or any services we may provide you that are associated with your use of the Site at any time in our discretion. Our termination or suspension may be without cause and/or without notice. You may terminate your use of the Site at any time, with or without cause by emailing us at support@paintheory.com. Upon termination, you may no longer use or access the Site. Once your use of the Site is terminated, any data you have stored on the Site may not be retrieved later. In addition, even if you terminate your use of the Site, PainTheory may continue to show some or all of your CP Content.

14. Jurisdiction

paintheory.controls and operates the Site from its offices in Denver, Colorado in the United States of America and PainTheory makes no representation that the CP Content, content submitted by Patient Members or any other content available on the Site or the Site are appropriate, available or may be downloaded for use outside the United States. You are responsible for complying with all of your local laws, if and to the extent your local laws are applicable. These CP Terms and the Site are governed by the federal laws of the United States and the laws of the State of Colorado, excluding any conflicts of law provisions. When you register for an account and click “I accept”, submit content to the Site, access, browse or otherwise use the Site, this means you hereby consent to the exclusive jurisdiction of the state and federal courts in Denver County, Colorado and you waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Denver County, Colorado.

15. Idemnification

You agree to indemnify and hold harmless PainTheory and the PainTheory Partners from and against any and all losses, liability, claims, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with: (i) any CP Content you post or submit to or through the Site; (ii) your use of the Site; (iii) your conduct in connection with the Site or with other Care Providers and Patient Members of the Site; (iv) any breach of these CP Terms, other PainTheory policies and guidelines; or (v) any violation of any law or the rights of any third party (including, but not limited to any violation of HIPAA or the rules, laws, guidelines or policies of any state medical board).

16. Claim Must Be Filed Within One Year; Arbitration

Any dispute, claim or controversy arising out of or relating to these CP Terms, PainTheory, the Site 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 final and binding arbitration as the sole and exclusive remedy for such controversy or dispute. Any claim shall be made by filing a demand for arbitration within one (1) year following the event first giving rise to the claim. The arbitration shall be held in Denver County, Colorado before one arbitrator. The arbitration shall be governed by the Federal Arbitration Act and the arbitration shall take place according to the rules of the American Arbitration Association. Judgment on the Award may be entered in any court having jurisdiction. Each of the parties shall bear all of its own costs of arbitration except the fee for the arbitrator shall be equally split between the parties. The arbitrator shall not have the authority to modify these CP Terms or award punitive or exemplary damages to either party. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Seeking any such remedies shall not constitute a waiver of either party’s right to compel arbitration.

17. Your Notices to Us

You may contact us by e-mail at  support@paintheory.com.

18. Our Notices to You; Consent Regarding Electronic Communication

This contract is in electronic form. There may be other information regarding the Site that the law requires us to send you. You agree that we may send you this information in electronic form. You have the right to withdraw this consent, but if you do, we may cancel your ability to use the Site. We may provide required information to you (1) via e-mail at the e-mail address you specified when you registered for a CP Account (or subsequently provided when updating your account information), (2) by access to a PainTheory website that will be designated in an e-mail notice sent to you at the time the information is available, or (3) by access to a PainTheory website that will be generally designated in advance for this purpose. Notices provided to you via e-mail will be deemed given and received on the transmission date of the e-mail. As long as you access and use the Site, you will have the necessary software and hardware to receive these notices. If you do not consent to receive any notices electronically, you must stop using the Site. If you want these CP Terms provided to you in nonelectronic form, then please send a request to PainTheory at support@paintheory.com. In that request, please provide your full name and address where PainTheory can send these CP Terms in nonelectronic form.

19. Miscellaneous

These CP Terms constitute the entire agreement between you and PainTheory regarding your use of the Site, and supersedes any prior agreements between you and PainTheory relating to your use of the Site. The failure of PainTheory to exercise or enforce any right or provision of these CP Terms shall not constitute a waiver of such right or provision in that or any other instance. If any provision of these CP Terms is held invalid, the remainder of these CP Terms shall continue in full force and effect. If any provision of these CP Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these CP Terms and shall not affect the validity and enforceability of any remaining provisions. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814 or by telephone at (800) 952-5210. Sections 4, 7, 12-19 survive the termination of these CP Terms.