Dr. Jay Kimmel - Upswing Health

Effective Date: January 1, 2019

The following terms and conditions constitute an agreement between you (“you”) and UpSwing Health, Inc. (“UpSwing Health,” “we,” “us” or “our”), the operator of www.UpSwingHealth.com (the “Site”), and any related mobile applications or services provided by us (collectively, the “Services”).

These Terms of Use include the terms and conditions stated herein, together with the terms and conditions set forth in the Privacy Policy (the “Privacy Policy”), which collectively constitute the “Terms of Use.”

BY VISITING, USING, REGISTERING, OR OTHERWISE ACCESSING THE SITE AND THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF USE. IF YOU DO NOT AGREE, DO NOT USE THE SITE OR THE SERVICES. IF YOU USE THE SERVICES ON BEHALF OF SOMEONE ELSE (SUCH AS YOUR CHILD), YOU REPRESENT THAT YOU ARE AUTHORIZED BY SUCH INDIVIDUAL TO ACCEPT THE TERMS OF USE ON SUCH INDIVIDUAL’S BEHALF.

1. About the Site and the Services

UpSwing Health is a digital health platform dedicated to providing resources and information about sports-related injuries. Our Services facilitate community board discussions and provides users with resources to understand and evaluate their sports-related injuries.

What we do:
• We offer a technology platform for you to connect with other athletes experiencing sports injuries on our community message board (the “Community Board”).
• We offer information services through our digital information tools, such as our automated symptom checker (the “Symptom Checker”). The Symptom Checker presents a list of possible conditions to assist you in exploring common sports injuries based on your self-described symptoms. The conditions presented depend on how closely the conditions match the symptoms entered based on publicly available medical resources.
• The results provided by Symptom Checker do not constitute medical advice, diagnosis or treatment. The Symptom Checker may provide details on next steps someone experiencing the symptoms entered would usually take or may provide general medical information of the types of conditions that people with similar symptoms have had. The Symptom Checker is not a medical device registered with the U.S. Food and Drug Administration.
• We offer information services through our on-line chat service (the “Provider Chat”), which allows you to connect with licensed athletic trainers, physicians and other providers (the “Healthcare Providers”) to discuss your sports-related injury.
• We perform research aimed at improving treatment options and health outcomes for athletes and others with sports and activity related injuries.

Access to the Community Board and the Symptom Checker are free. The Provider Chat is available to subscribers after payment of our subscription fee (the “Subscription Fee”).

What we don’t do:
• We don’t provide you with specific medical advice, diagnosis or treatment.
• We don’t control or interfere with the medical care you receive from your own health care providers.

2. The Different Types of Content Provided on the Site and Through the Services

We communicate or may communicate through the Site and the Services by using text, graphics, images, videos, photographs, audio, interfaces, content, sounds, artwork, computer code, and other information or materials posted or provided on, by, or through the Site and the Services (collectively, the “Content”). Some of the Content is provided by us (the “UpSwing Health Content”), and some of the Content is provided by others, including Content provided by other users in the context of the Community Board (the “Community Content”) and Content provided by users and Healthcare Providers in the context of a Provider Chat (the “Chat Content”). We have the right it use any Content that you post on the Site or in connection with using the Services. UpSwing Health may, in its sole discretion, screen, monitor, refuse or remove any Community Content or Chat Content if it violates the Terms of Use or is otherwise objectionable or inappropriate.

3. We Do Not Provide Medical Advice, Diagnosis or Treatment

WE DO NOT PROVIDE USERS WITH SPECIFIC MEDICAL ADVICE, DIAGNOSES OR TREATMENT. The Content, including general information accessible on the Site, the Symptom Checker, Chat Content, Community Content, and communications from UpSwing Health or its employees, contractors or agents related to your use of the Site and Services, and all Content you receive from the Site or Services is provided for informational purposes only. Nothing on the Site and none of the Content should be considered specific medical advice, diagnosis or treatment, even if it is related to or provided to a User and is of a health or medical nature.

The Site is appropriately used as an informational resource and should not be relied upon in lieu of seeking treatment from a health care provider. You agree not to delay or avoid getting medical care from other healthcare providers because of any information on this Site or that you obtained through the Services. You should always talk to your health care professionals for personal diagnosis and treatment, including information regarding which drugs or treatment that may be appropriate for you.

THE SITE AND THE SERVICES ARE NOT FOR EMERGENCY USE. IF YOU HAVE OR THINK YOU HAVE A MEDICAL EMERGENCY, PLEASE CONTACT 9-1-1 IMMEDIATELY OR SEEK EMERGENCY MEDICAL HELP.

4. No Provider-Patient Relationship

No medical professional/patient relationship is created between you and UpSwing Health and any healthcare providers by using the Provider Chat or by using any Content, whether such Content is provided by or through the use of the Site, the Services or through any other communications from UpSwing Health or the Healthcare Providers, including emails or text messages, links to other sites from our Site, or any assistance we may provide to help you find an appropriate healthcare provider for healthcare services.

5. Required Age to Use the Site and the Services

You must be 18 years of age or over (or the legal age to form a binding contract in your jurisdiction if that greater than 18 years), to register with us or use the Site and the Services. If you are between the ages of 13 and 18, you can use the Site or Services only with authorization and supervision of your parent or guardian who has agreed to the Terms of Use. If you are under the age of 13, you may not register to use the Site or Services.

If you are the parent or legal guardian of a child between the ages of 13 and 18, you may use the Site or Services on behalf of such minor child. By using the Site or Services on behalf of a minor child, you represent and warrant that you are the parent or legal guardian of such child, and that you are authorized to enter into the Terms of Use on behalf of such child. You agree that all references in the Terms of Use to “you” shall refer to both your child and you in your capacity as the parent or legal guardian of such child. If you do not agree to these terms, do not use the Site or Services.

6. Accessing the Site and Services; Account Security

Portions of the Site and the Services are viewable without registering as a user with us. To register with us, you will be asked to provide certain personal information. It is a condition of your use of the Site that all the information you provide on the Site is correct, current and complete. You agree that all information you provide to register with the Site or otherwise, including through the use of any interactive features on the Site, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

As a user, you have a limited, personal and noncommercial, nontransferable right to access and use the Site and the Services, subject to the Terms of Use. You are responsible for making all arrangements necessary for you to have access to the Site and ensuring that all persons who access the Site through your internet connection are aware of the Terms of Use and comply with them. Your user name, password, and any other security credentials to access the Site and the Services are confidential, and you agree not to disclose it to any other person or entity. You agree that you must promptly inform us if your user name, password, and any other security credentials are lost or stolen. We reserve the right to disable any user name, password, or other security credential and deny use of the Site or Services at any time for any or no reason.

We reserve the right to withdraw or amend the Site, and any service or material we provide on the Site, in our sole discretion without notice. From time to time, we may restrict access to some parts of the Site, or the entire Site, to users.

7. Intellectual Property Rights

The Site, the Services, and the Content, including all functionality, design, arrangement, structure, expression, and “look and feel” of the Content is owned by UpSwing Health or its licensors and is protected protected by United States and international copyright, trademark, trade secret and other intellectual property or proprietary rights laws.

You must not access or use any part of the Site or the Services for any commercial purposes. All rights not expressly granted to you by UpSwing Health in the Terms of Use are reserved by UpSwing Health. Any use of the Site not expressly permitted by the Terms of Use is a breach of the Terms of Use and may violate copyright, trademark and other laws.

You can download, print, or store Content from the Site for your personal, non-commercial use. You cannot reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the Content for a commercial use or for any use that isn’t solely related to your personal use of the Site and the Services. You cannot delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from this site.

The UpSwing Health name and trademarks, including words and logo, and all related names, logos, product and service names, designs and slogans are trademarks of UpSwing Health or its affiliates or licensors. You must not use such marks without our prior written permission. All other names, logos, product and services names, designs and slogans on the Site are the trademarks of their respective owners.

8. Your Personal Information and our Privacy Policy

All information we collect on the Site is subject to our Privacy Policy, in effect from time to time as set forth therein. By using the Site, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

9. Acceptable Use Policy

Prohibited Uses. UpSwing Health determines acceptable behavior with respect to the use of its Site and Services. By accessing the Site and using the Services, you agree that you will not:
• use the Service in any unlawful manner;
• fraudulently or intentionally misuse the Services;
• use the Services in any manner that is harmful, hateful, harassing, abusive, or otherwise offensive to any third party (including a Healthcare Provider), in UpSwing Health’s sole discretion;
• interfere with or inhibit any other user from using or enjoying the Services;
• use the Services as a means to distribute unsolicited or unauthorized communications, advertisements, or spam;
• access or search the Services by any means other than the authorized public interface;
• collect or use any Content that violates any third-party right (whether a privacy right, an intellectual property right, or otherwise);
• create a false identity, impersonate another person or entity, otherwise misrepresent yourself, or create user accounts or submit user-generated content by automated means or under false or fraudulent pretenses;
• breach or otherwise circumvent any security measures incorporated into the Site or the Services; or
• use the Services in any manner that is considered unacceptable by UpSwing Health.

Without limiting the foregoing, you also agree you will not, and will not attempt to:
• interfere with or disrupt the functioning of the Site or Services in any manner, including the functioning of any software, hardware, network or server connected to the Site or the Services;
• attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Site or Services, the server on which the Site is stored, or any server, computer or database connected to the Site;
• distribute or transfer in any manner the Site or the Services or any part of the Services to any third party;
• modify, reformat, adapt, or translate the Site or the Services, the Content, or any part of the Services for any
• use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve, index, monitor, or copy any of the Site, the Content, or any Services;
• introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful;
• attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
• use any means, including software means, to conduct web scraping of any portion of the Site, the Content, or the Services.
• incorporate by any means any of the Content into another application, website or service;
• reverse-engineer or create derivative works based on any part of the Services for any purpose, commercial or otherwise;
• visit the Site or use the Services in any manner (commercial or otherwise) other than for your personal use as a customer of UpSwing Health;
• use the Services, directly or indirectly, to engage in any anti-competitive, deceptive or unfair practices, or otherwise violate applicable antitrust, competition or consumer protection laws, or regulations; or
• visit the Site or use the Services in any manner that is inconsistent with the Terms of Use.

Our policy is to block access to or remove material that we identify and believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, Content providers, members or other users. We may deny access to the Site and the Services to those who violate the terms on acceptable use.

Community Content. Users may submit Community Content to the Community Board. Community Content may include comments, questions, documents, and pictures. All Community Content comply with the requirements for acceptable use and the Terms of Use.

You acknowledge and agree that the Community Content may be viewable by other users of the Site and the Services. Like any Community Content you provide, other Community Content reflects the thoughts and opinions of users and you should not rely on such Community Content as a diagnosis of any sports injury or a guaranty of a certain outcome. We reserve the right to publish your Community Content as part of the Services and remove your Community Content for any reason. We are not responsible for any failure or delay in posting or removing any Community Content. You agree that in providing Community Content, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any such Community Content.

Without limiting the generality of the foregoing, you acknowledge and agree that, with respect to all Community Content submitted by you:
• you are solely responsible for any information you submit, publish or display through the Services (as applicable);
• you may not submit any content or material that infringes, misappropriates or violates the intellectual property, publicity, privacy or other rights of any party;
• you may not submit information that in any way:
° is false, deceptive or misleading, or likely to deceive or mislead, in our sole discretion;
° is harassing, offensive, discriminatory, sexually explicit, threatening, abusive, obscene, defamatory or libelous, in our sole discretion;
° involves the transmission of unsolicited mass mailing or “spamming”;
° violates, infringes or misappropriates the intellectual property or other rights of any person or entity;
° promotes illegal activity or advocates or assists in unlawful conduct; or
° violates antitrust, competition, or consumer protection laws.

We reserve the right to remove Community Content to the extent it violates any of the above agreements and/or to terminate your account. The foregoing is a partial list of the kind of content and communications that are illegal or prohibited on/through the Site or the Services. UpSwing Health reserves the right to investigate and take appropriate legal action in accordance with the Terms of Use.

10. Terms of Sale

All purchases from UpSwing Health through the Site or the Services or other transactions for the sale of the Services through the Site or the Services or as a result of your subscription for premium services are governed by the following terms of sale.

Fees and Purchase Terms. The Subscription Fee for premium services will be posted on the Site. Subscriptions can be purchased by paying the annual Subscription Fee. Your payment to UpSwing Health will automatically renew at the end of the subscription period unless your subscription is cancelled through your account settings.

The Subscription Fee may be updated from time to time and UpSwing Health will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes will take effect at the start of the next subscription period following the date of the price change. As permitted by local law, you accept the new price by continuing to use the Services after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by unsubscribing from the Service prior to the price change going into effect. Please make sure you read any such notification of price changes carefully.

You will be required to provide UpSwing Health with a valid credit card or any other method of payment accepted by us (“Payment Provider”) when you set up your billing account within our Services (“Your Account”). By providing UpSwing Health with your credit card information or Payment Provider and associated payment information, you agree that UpSwing Health is authorized to bill Your Account at the time any payments are due and to charge your designated credit card or Payment Provider account. If any charges are subject to sales tax in the applicable jurisdiction, you also agree to pay the required sales tax and any related penalties or interest. UpSwing Health may automatically charge sales tax for addresses within jurisdictions where collection of sales tax is required. You are responsible for all fees and charges associated with Your Account.

We use a third-party payment processor (the “Payment Processor”) to charge your credit card or Payment Provider account. The processing of payments in connection with your use of our Services will be subject to the terms, conditions and privacy policies of the Payment Processor and the Payment Provider responsible for your designated method of payment, in addition to UpSwing Health’s Privacy Policy and Terms of Use. You will promptly review all charges processed through the Payment Processor, and immediately notify UpSwing Health to the extent you have any questions, concerns or disputes with respect to UpSwing Health’s charges. We are not responsible for any errors by the Payment Processor or the Payment Provider.

You acknowledge and agree that neither UpSwing Health nor our Payment Processer will be responsible in any manner if either we or our Payment Processer are unable to complete a payment transaction for any reason, including:
• if you have not provided us with accurate, current and complete payment information;
• if you do not have sufficient available funds or available credit to complete the transaction;
• if you do not have an active payment card, or if we are unable to confirm your payment card information or your identity;
• if your access to the Services, your account with us, or your account with your Payment Provider has been terminated or suspended for any reason;
• if the service provided by our Payment Processer is down or available for any reason; or
• if we or our Payment Processer have reason to believe that the requested transaction is unauthorized.

SMS/Text Communications and Data Charges. If you have provided a mobile telephone number, we may send communications to you by SMS or text message. Message and data rates from your mobile telephone service provider may apply and are subject to the terms and conditions imposed by your provider. If you use the Site and the Service from a device using wireless or cellular data, UpSwing Health is not responsible for any data access service or charges you may incur. You are solely responsible for paying any applicable charges payable to your cellular, broadband and/or messaging provider(s).

11. Device Compatibility

UpSwing Health does not promise that the Site and the Services are compatible with all electronic devices and with all versions/updates of all operating systems or firmware. If you make changes to your operating system, web browser or firmware, your use of the Site may not function properly. UpSwing Health may, but is not obligated to, provide updates to the application that improve compatibility with updated operating systems, web browsers or mobile devices.

12. Third-Party Software

We may incorporate third party software as part of the Site or Services, including without limitation, open source third party software. Your use of such third party software is subject to any and all applicable additional terms and conditions governing such use provided by the third-party software provider. Where applicable, additional notices relating to the third-party software may be provided by us, which for example may contain attribution and disclaimer notices applicable to the third-party software.

13. Violation of Terms of Use; Termination

In addition to any other rights we have reserved in the Terms of Use, we reserve the right to terminate your access to the Site and use the Services if you violate the Terms of Use or any part thereof, including the Privacy Policy. In the event that we terminate your access to the Site and deny you access to or use of the Services (whether through this section or elsewhere as provided in the Terms of Use), the Terms of Use shall survive termination and your obligations set forth herein shall continue in full force and effect.

14. Updates to the Site

We may update, modify, or remove the Content on the Site or the Services from time to time, but the Content is not necessarily complete or up-to-date. Any of the Content on the Site or the Services may be out of date at any given time, and we are under no obligation to update such Content.

15. Advertising; Links from the Site

We may receive additional fees from healthcare-related businesses that advertise on our Site and may provide special offers or promotions to UpSwing Health users from time to time. We may feature those special offers or promotions on the Site and through the Services (“Sponsored Offers”). We do not endorse or recommend any of these services or products. We only provide the advertising space for a fee.

If the Site contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements, sponsored links and links for Sponsored Offers. We have no control over the contents of such third-party websites and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Site, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

16. Geographic Restrictions

The Services are not available in all states. In addition, use of the Services is not available for users residing in states where offering, accessing or using our Services would be illegal or unlawful.

17. Disclaimer of Warranties

The site, the services, and all content is available “AS IS” and “AS AVAILABLE” and without any warranties of any kind. Your use of the Site and the Services is solely at your own risk.

Without limiting the generality of the foregoing:
• WE MAKE NO GUARANTEES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR PARTICULAR PURPOSE.
• WE MAKE NO GUARANTEES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO PROFESSIONAL QUALIFICATIONS OR CREDENTIALS OF ANY HEALTHCARE PROVIDERS, OR EXPERTISE OR QUALITY OF WORK OF ANY HEALTHCARE PROVIDER.
• WE MAKE NO GUARANTEES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO COMPLETENESS, ACCURACY, RELIABILITY, OR AVAILABILITY OF THE SITE, THE SERVICES, OR ANY CONTENT.
• IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON ANY CONTENT ON THE SITE.
• WE DO NOT IN ANY WAY ENDORSE OR RECOMMEND ANY INDIVIDUAL HEALTHCARE PROVIDER LISTED OR ACCESSIBLE THROUGH THE SERVICES; ANY SPECIFIC TREATMENT, TESTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION THAT MAY APPEAR THROUGH THE SERVICES; OR THAT ANY PARTICULAR DRUG OR TREATMENT IS SAFE, APPROPRIATE, OR EFFECTIVE FOR YOU.
• WE MAKE NO GUARANTEES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, THAT THE SITE OR THE SERVER THAT MAKES IT AND THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Site will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

The foregoing does not affect any warranties that cannot be excluded or limited under applicable law.

18. Limitation on Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL UPSWING HEALTH, ITS AFFILIATES OR LICENSORS, HEALTHCARE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITE OR THE SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, PERSONAL OR PROFESSIONAL REPUTATION HARM, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

Without limiting the foregoing, we will not be liable for any injury resulting or arising from or related to the use of the Site or Services whatsoever.

The foregoing does not affect any liability that cannot be excluded or limited under applicable law.

19. Indemnification and Release

You agree to indemnify and hold harmless UpSwing Health, its affiliates, subsidiaries, licensors, service providers, officers, directors, employees, contractors, agents, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, penalties, expenses or fees (including reasonable attorneys’ and consultants’ fees) arising out of or relating to your violation of the Terms of Use, your use of the Site, or your use of the Services.

20. Resolution of Disputes

In the unlikely event that UpSwing Health has not been able to resolve a dispute it has with you after attempting to do so informally (in its sole discretion), you agree to resolve any claim, dispute, or controversy (excluding any claims we might have for injunctive or other equitable relief) arising out of or relating to the Terms of Use, the Site, or the Services (collectively, “Claims”) by binding arbitration by the American Arbitration Association (“ AAA” ) in Hartford County, Connecticut under the commercial rules then in effect for the AAA, except as provided herein. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this section shall be deemed as preventing UpSwing Health from seeking injunctive or other equitable relief from the courts as necessary to protect any of UpSwing Health’s proprietary interests.

ALL CLAIMS BY A USER MUST BE BROUGHT BY THE USER IN HIS OR HER INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING (INCLUDING CLASS ACTION ARBITRATION). YOU AGREE THAT, BY ENTERING INTO THE TERMS OF USE, YOU AND UPSWING HEALTH ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION PROCEEDING.

21. Limitation on Time to File Claims

Any cause of action or claim you may have arising out of or relating to the terms of use, the site, or the services must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred.

22. Other General Terms

Governing Law. The Terms of Use and any disputes arising therefrom, related thereto, or arising from or relating to the Site or the Services shall be governed by laws of the State of Connecticut without regards to its conflicts of law principles that might require the application of the laws of any other jurisdiction. We can’t take responsibility for laws outside of the U.S. or that could apply to the possible use of our Site or Service outside of the U.S. If you are accessing our Site or Services from outside the U.S., you should check whether it is lawful to access our services in your location and we take no responsibility for any differences in law in such jurisdiction.

Waiver and Severability. In the event of the invalidity of any provision of the Terms of Use, such provision shall be deemed stricken from the Terms of Use, which shall continue in full force and effect as if the offending provision were never a part of the Terms of Use.

No Oral Amendments. The Terms of Use cannot be orally modified by UpSwing Health, or any of its employees, agents, or representatives.

23. Effective Date; Changes to the Terms of Use

The Terms of Use are effective as of the effective date, as set forth at the top hereof. UpSwing Health reserves the right to change the terms of the Terms of Use at any time. If we make a change, we will post the new terms on the Site and revise the effective date at the top of this page. We will provide a notification to registered users the next time they login to the Services with the revised Terms of Use and users will be asked to acknowledge that they have read and accept the changes by clicking “I Agree.” We recommend that you read the Terms of Use each time you use our Site in case you missed our notice of changes. Your continued use of the Services and Site following the posting of changes to this Terms of Use will mean you accept those changes.

24. Notice for California Users

Under California Civil Code Section 1789.3, California users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.

25. Contacts

If you have questions, concerns or comments regarding the Terms of Use, please contact us at __________________________ or at:

UpSwing Health, Inc.
[Address]
[Address]
Telephone: ___________

At Upswing Health, Inc. (“Upswing Health,” “us,” “we,” or “our”) your privacy is important to us. Our Privacy Policy describes the information we collect, how we collect the information, the reasons we collect information, and how we share or use the information we collect. This Privacy Policy also describes the choices you have with the information we collect, including how you can manage, update, or request to delete information. Please take a moment to review this Privacy Policy. You may scroll through this Privacy Policy or use the headings below. It is important that you understand this Privacy Policy. By using our Platform, you are agreeing to the terms of this Privacy Policy. If you have any questions or concerns about this Privacy Policy, you may Contact Us at any time.

Table of Contents

Who is Upswing Health?
Key Terms & Definitions and Our Privacy Policy
When does our Privacy Policy apply?
When does our Privacy Policy not apply?
Our Privacy Policy and Terms of Use.
Personal Information
What is Personal Information?
What types of Personal Information do we collect?
How do we collect your Personal Information?
How do we use your Personal Information?
How do we share your Personal Information?
Your choices about how we share your Personal Information.
How do I access and correct my Personal Information?
Who may use the Services?
Children’s Privacy
Does Upswing Health respond to Do Not Track signals?
Data Security
Changes to our Privacy Policy
Contact Us

1. Who is Upswing Health?

Upswing Health provides a number of tools, including a technology platform for you to connect with other athletes (“Community Board”), a digital tool to assess potential injuries (“Symptom Checker”), and on-line chat features to speak with athletic trainers and Upswing Coaches (“Provider Chat”). Upswing Health also provides administrative and management services to independent, physician-owned and operated, medical practices. Upswing Health is not a medical group and does not provide medical advice, care, and/or treatment. Our Community Board, Symptom Checker, and/or Provider Chat tools do not constitute medical advice and should not be used for treatment in lieu of speaking to a licensed provider.

Upswing Health provides its users with the ability to obtain a telemedicine consultation provided by independent medical practitioners including, but not limited to, Potomac Health, P.C. and its affiliates (“Medical Group”), an independent medical group with a network of United States based health care providers (each, a “Provider”). Medical Group (or your own medical provider if you do not use a Medical Group Provider) is responsible for providing you with a Notice of Privacy Practices https://upswinghealth.com/privacy-policy/ https://upswinghealth.com/terms-and-conditions/ describing its collection and use of your health information, not Upswing Health.

2. Key Terms & Definitions and Our Privacy

It is helpful to start by explaining some of our key terms and definitions used in this Privacy Policy.

Key Term	Definition
“Personal Information”	Any information relating to an identified or identifiable individual and any information listed here.
our “Platform”	Our Website
“Privacy Policy”	This privacy policy.
our “Services”	Any services provided through our Platform.
our “Terms of Use”	Our terms of use located here. https://upswinghealth.com/terms-and-conditions/
our “Website(s)”	Our websites, including: www.upswinghealth.com
“Upswing Health,” “we,” “us,” or “our”	Upswing Health, Inc. When

When does our Privacy Policy apply?

This Privacy Policy describes the types of information we may collect from you when:

You visit or use our Platform, including our Website;
We communicate in e-mail, text message, and other electronic messages between you and us; and
We communicate in person, such as on the phone or through a telehealth visit.

When does our Privacy Policy not apply?

This Privacy Policy does not apply to information collected by any other website operated either by us or by a third party, unless the website is listed above or links to this Privacy Policy. It also does not apply to any website that we may provide a link to or that is accessible from our Platform.

This Privacy Policy does not apply to information collected from users who log-in to the password-protected and secure portions of our Platform (“Secure Platform”). The Secure Platform allows users who obtain the Services (“Customers”) to perform certain functions or obtain the Services (such as telehealth visits from Medical Group or Providers). All information collected and stored by us or added by Customers into such Secure Platforms is considered Protected Health Information ("PHI") and/or medical information and is governed by applicable state and federal laws that apply to that information, for example the Health Insurance Portability and Accountability Act (“HIPAA”). How we use and disclose such PHI is in accordance with the applicable Notice of Privacy Practices https://upswinghealth.com/privacy-policy/ provided to you by the Medical Group. We will not use or disclose information collected from the Secure Platform or received from Medical Group or your Provider for advertising, marketing, or other use-based data mining purposes except as otherwise permitted by HIPAA and other applicable law. We will not sell any PHI in violation of HIPAA.

Our Privacy Policy and Terms of Use.

This Privacy Policy is incorporated into our Terms of Use, which also apply when you use our Platform.

3. Personal Information

What is Personal Information?

Personal information is information from and about you that may be able to personally identify you. We treat any information that may identify you as Personal Information. For example, your name and e-mail address are Personal Information.

What types of Personal Information do we collect?

We may collect and use the following personal information (hereinafter, collectively referred to as “Personal Information”):

Categories of Personal Information	Specific Types of Personal Information Collected
Personal Identifiers	a real name, e-mail address, or Patient ID.
Information that identifies, relates to, describes, or is capable of being associated with a particular individual	physical characteristics or description, telephone number, credit card number, debit card number, or any other financial information, insurance policy number, medical conditions, family medical history, and medications currently taking or prescribed.
Characteristics of protected classifications under California or federal law.	Medical Condition or Disability Internet or
Internet or other electronic network activity information	IP address, device mode, device ID, OS version, device language, operating system, browser type, browsing history, search history, and information regarding a consumer’s interaction with an Internet Web site, application, or advertisement.
Geolocation data	Physical location or movements, local time, and local time zone.
User Generated Content	Information you provide to be published or displayed (hereinafter, “Posted”) on public areas of our Website or transmitted to other users of the Website or other third parties.

Health Information

Some Personal Information we collect may constitute PHI under HIPAA. As set forth above, your Provider will provide you with a Notice of Privacy Practices describing their collection and use of your health information, not Upswing Health. We will only collect and use PHI for the purposes of providing the Services and we only collect the minimum amount necessary to fully perform and provide the Services on our Platform. We may combine your PHI with Personal Information that we have either obtained from you or through a third-party, such as your Provider, health insurer, employee benefits program, or other health care providers. PHI will only be used and disclosed as outlined in the Notice of Privacy Practices and as permitted by HIPAA and other applicable law.

How do we collect your Personal Information?

We collect most of this Personal Information directly from you. For example, when we speak to you by phone, text message, and e-mail. Additionally, we will collect information from you when you visit our Website and fill out forms or purchase our Services.

We may also collect Personal Information in the following ways:

From your mobile device.
When You Use A Premium Feature. When you choose to participate in a premium service, we collect additional information from you related to those services. Some premium features are paid services.
When you make payments through the Platform. We do not collect or store financial account information, though we may receive transaction identifiers and summary information that does not include credit card or bank account numbers.
When You Contact Us. When you contact Upswing Health directly, such as when you contact our Customer Support team, we will receive the contents of your message or any attachments you may send to us, as well as any additional information you choose to provide.

We will also collect information automatically as you navigate through our Platform. We use the following technologies to automatically collect data:

Cookies. We and our service providers may use cookies, web beacons, and other technologies to receive and store certain types of information whenever you interact with our Platform or Services through your computer or mobile device. A “cookie” is a small file or piece of data sent from a website and stored on the hard drive of your computer or mobile device. Some of the cookies we use are "session" cookies, meaning that they are automatically deleted from your hard drive after you close your browser at the end of your session. Session cookies are used to optimize performance of the Website and to limit the amount of redundant data that is downloaded during a single session. We also may use "persistent" cookies, which remain on your computer or device unless deleted by you (or by your browser settings). We may use persistent cookies for various purposes, such as statistical analysis of performance to ensure the ongoing quality of our Platform and/or the Services. We and third parties may use session and persistent cookies for analytics and advertising purposes, as described herein. On your computer, you may refuse to accept browser cookies by activating the appropriate setting on your browser, and you may have similar capabilities on your mobile device in the preferences for your operating system or browser. However, if you select this setting you may be unable to access or use certain parts of our Platform or the Services. Unless you have adjusted your browser or operating system setting so that it will refuse cookies, our system will issue cookies when you direct your browser to our Platform.

Facebook Pixel and Instagram. We use Facebook Pixel and Instagram, a web analytics and advertising service provided by Facebook Inc. (“Facebook”) on our Platform. With its help, we and our customers can keep track of what users do after they see or click on a Facebook or Instagram advertisement, keep track of users who access our Platform or advertisements from different devices, and better provide advertisements to our target audiences. The data from Facebook Pixel and Instagram is also saved and processed by Facebook. Facebook can connect this data with your Facebook or Instagram account and use it for its own and others advertising purposes, in accordance with Facebook’s Data Policy which can be found at https://www.facebook.com/about/privacy/. Please click here if you would like to withdraw your consent for use of your data with Facebook Pixel https://www.facebook.com/settings/?tab=ads#_=_.
Google Analytics. We use Google Analytics, a web analytics service provided by Google, Inc. (“Google”) to collect certain information relating to your use of our Platform. Google Analytics uses cookies, to help our Platform analyze how users use our Website. You can find out more about how Google uses data when you visit our Platform by visiting “How Google uses data when you use our partners' sites or apps”, (located at www.google.com/policies/privacy/partners/). For more information, please visit Google and pages that describe Google Analytics, such as www.google.com/analytics/learn/privacy.html.
Google Ads (AdWords). Google Ads (AdWords) remarketing service is provided by Google Inc. You can opt-out of Google Analytics for Display Advertising and customize the Google Display Network ads by visiting the Google Ads Settings page: http://www.google.com/settings/ads. Google also recommends installing the Google Analytics Opt-out Browser Add-on – https://tools.google.com/dlpage/gaoptout for your web browser. Google Analytics Opt-out Browser Add-on provides visitors with the ability to prevent their data from being collected and used by Google Analytics. For more information on the privacy practices of Google, please visit the Google Privacy Terms web page: https://policies.google.com/privacy?hl=en.
Hotjar. Our Platform uses Hotjar’s services, a third party service provider, which helps us better understand our users’ experience (e.g. how much time they spend on which pages, which links they choose to click, what users do and don’t like, etc.) and enables us to build and maintain our Platform and Services with user feedback. Hotjar uses cookies and other technologies to collect data on our users’ behavior and their devices (in particular device's IP address (captured and stored only in anonymized form), device screen size, device type (unique device identifiers), browser information, geographic location (country only), preferred language used to display our website). Hotjar stores this information in a pseudonymized user profile. Neither Hotjar nor we will ever use this information to identify individual users or to match it with further data on an individual user. For further details, please see Hotjar’s privacy policy by clicking on this link. You can opt-out to the creation of a user profile, Hotjar’s storing of data about your usage of our site and Hotjar’s use of tracking cookies on other websites by following this opt-out link.
Unbounce. We use Unbounce, a marketing platform provided by Unbounce Marketing Solutions Inc., to assist in collecting information about user’s interaction with our website. To learn more about how Unbounce uses your Personal Information, we encourage you to visit Unbounce’s privacy policy at https://unbounce.com/privacy/.
LeadPost. We use LeadPost, a marketing platform provided by LeadPost, LLC, for the purposes of providing automated lead generation and retargeting. To learn more about how LeadPost uses your Personal Information, we encourage you to visit LeadPost’s privacy policy at https://leadpost.com/privacy-policy/.
Other third party tools. We use other third party tools which allow us to track the performance of our Platform. These tools provide us with information about errors, app and website performance, and other technical details we may use to improve our Platform and/or the Services. For more information related to these third-party analytics providers please review How do we collect your Personal Information?.

How do we use your Personal Information?

We may use your Personal Information for the following purposes:

Operate, maintain, supervise, administer, and enhance our Platform or the Services, including monitoring and analyzing the effectiveness of content on the Platform, aggregate site usage data, and other usage of the Platform and/or the Services such as assisting you in completing the registration process.
Provide our Products and Services to you, in a custom and user-friendly way.
Provide you with information, Products, or Services that you request from us or that may be of interest to you.
Promote and market our Platform and/or the Services to you. For example, we may use your Personal Information, such as your e-mail address, to send you news and newsletters, special offers, and promotions, or to otherwise contact you about Products or information we think may interest you. We also may use the information that we learn about you to assist us in advertising our services on third party websites. You can opt-out of receiving these e-mails at any time as described below.
To provide you notices or about your account.
Contact you in response to a request.
To notify you about changes to our Platform and/or the Services or any Products we offer or provide through them.
Fulfill any other purpose for which you provide it.
To carry out our obligations and enforce our rights arising from any contracts entered into between you and us, including for billing and collection.
Anonymize and aggregate information for analytics and reporting.
To respond to law enforcement requests, court orders, and subpoenas and to carry out our legal and contractual obligations.
Authenticate use, detect fraudulent use, and otherwise maintain the security of our Platform and the safety of others.
Any other purpose with your consent.

How do we share your Personal Information?

We may share Personal Information with third parties in certain circumstances or for certain purposes, including:

Our business purposes. We may share your Personal Information with our affiliates, vendors, service providers, and business partners, including our data hosting and data storage partners, analytics and advertising providers, technology services and support, and data security advisors. We may also share your Personal Information with professional advisors, such as auditors, law firms, and accounting firms.
Your healthcare providers or family. With your consent, we may share your information, including information collected from your use of our Platform, with your health care providers and/or family members (e.g., immediate family or friends) that you designate to receive your information.
With your consent. We may share your Personal Information if you request or direct us to do so.
Compliance with law. We may share your Personal Information to comply with applicable law or any obligations thereunder, including cooperation with law enforcement, judicial orders, and regulatory inquiries.
Business Transfer. We may share your Personal Information to a buyer or other successor in the event of a merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of our assets, whether as a going concern or as part of a bankruptcy, liquidation, or similar proceeding, in which Personal Information held by us about our users are among the assets transferred.
To enforce our rights. We may share your Personal Information to enforce any applicable terms and conditions and Terms of Use, and to ensure the safety and security of our Services and our users.
De-identified information. We may also disclose de-identified information, so that it cannot be reasonably used to identify any individual, with third parties for marketing, advertising, research, or similar purposes.
To improve our Platform. We may use your Personal Information for internal testing, research, analysis, and product development, including to develop and improve our website/application, and to develop, improve, or demonstrate our products and services.
To market our products and services. We may share your Personal Information with affiliates and third parties to market our products and services.
Third Party Analytics. We use Google Analytics to understand and evaluate how visitors interact with our Platform and/or the Services. These tools help us improve our Platform and/or the Services, performance, and your experience. See How do we collect your Personal Information above.

Your choices about how we share your Personal Information.

This section of our Privacy Policy provides details and explains how to exercise your choices. We offer you choices on how you can opt out of our use of tracking technology, disclosure of your Personal Information for our advertising to you, and other targeted advertising. We do not control the collection and use of your information collected by third parties. These third parties may aggregate the information they collect with information from their other customers for their own purposes. You can opt out of third parties collecting your Personal Information for targeted advertising purposes in the United States by visiting the National Advertising Initiative's (NAI) opt-out page and the Digital Advertising Alliance's (DAA) opt-out page.

Each type of web browser provides ways to restrict and delete cookies. Browser manufacturers provide resources to help you with managing cookies. Please see below for more information.

For other browsers, please consult the documentation that your browser manufacturer provides.

If you do not wish to have your e-mail address used by Upswing Health to promote our own Services, you can opt-out at any time by clicking the unsubscribe link at the bottom of any e-mail or other marketing communications you receive from us or logging onto your Account Preferences page. This opt out does not apply to information provided to Upswing Health as a result of a product purchase, or your use of our Platform and/or the Services. You may have other options with respect to marketing and communication preferences through our Platform.

You may also see certain ads on other websites because we participate in advertising networks. Ad networks allow us to target our messaging to users through demographic, interest-based, and contextual means. These networks track your online activities over time by collecting information through automated means, including through the use of cookies, web server logs, and web beacons. The networks use this information to show you advertisements that may be tailored to your individual interests.

How do I access and correct my Personal Information?

You can review and change your Personal Information by logging into our Services and visiting either the “About You” or “Health Details” sections of our Platform. You may also Contact Us to inform us of any changes or errors in any Personal Information we have about you to ensure that it is complete, accurate, and as current as possible or to delete your account. We cannot delete your personal information except by also deleting your account with us. We may also not be able to accommodate your request if we believe it would violate any law or legal requirement or cause the information to be incorrect.

4. Who may use the Services?

Upswing Health operates subject to state and federal regulations, and the Platform and/or the Services may not be available in your state. You represent that you are not a person barred from enrolling for or receiving the Services under the laws of the United States or other applicable jurisdictions in which you may be located. Access to and use of the Platform and/or the Services is limited exclusively to users located in states within the United States where the Platform and/or the Services is available. The Platform and/or the Services are not available to users located outside the United States. Accessing the Platform and/or obtaining the Services from jurisdictions where content is illegal, or where we do not offer the Platform and/or the Services, is prohibited.

5. Children’s Privacy

You must be 18 years of age or over to register with us or use the Platform and the Services. If you are between the ages of 13 and 18, you can use the Platform or Services only with authorization and supervision of your parent or guardian who has agreed to the Terms of Use and Privacy Policy. If you are under the age of 13, you may not register to use the Platform or Services.

If you are the parent or legal guardian of a child between the ages of 13 and 18, you may use the Platform or Services on behalf of such minor child. By using the Platform or Services on behalf of a minor child, you represent and warrant that you are the parent or legal guardian of such child, and that you are authorized to enter into the Terms of Use and Privacy Policy on behalf of such child. You agree that all references in the Terms of Use and Privacy Policy to “you” shall refer to both your child and you in your capacity as the parent or legal guardian of such child. If you do not agree to these terms, do not use the Platform or Services. If we learn that we have collected or received Personal Information from a child under 18 without the authorization of a parent or guardian, we will delete that information. If you are the parent or guardian of a child under 18 years of age whom you believe might have provided us with their Personal Information, you may Contact Us to request the Personal Information be deleted.

6. Does Upswing Health respond to Do Not Track signals?

Some web browsers have a “Do Not Track” feature. This feature lets you tell websites you visit that you do not want to have your online activity tracked. These features are not yet uniform across browsers. Our Platform is not currently set up to respond to those signals.

7. Data Security

We have taken steps and implemented administrative, technical, and physical safeguards designed to protect against the risk of accidental, intentional, unlawful, or unauthorized access, alteration, destruction, disclosure, or use. The Internet is not 100% secure and we cannot guarantee the security of information transmitted through the Internet. Where you have been given or you have chosen a password, it is your responsibility to keep this password confidential.

The sharing and disclosing of information via the internet is not completely secure. We strive to use best practices and industry standard security measures and tools to protect your data. However, we cannot guarantee the security of Personal Information transmitted to, on, or through our Services. Any transmission of Personal Information is at your own risk. We are not responsible for the circumvention of any privacy settings or security measures contained on our Platform, in your operating system, or mobile device.

8. Changes to our Privacy Policy

We may update our Privacy Policy periodically to reflect changes in our privacy practices, laws, and best practices. We will post any changes we make to our Privacy Policy on this page. Upon any minor or material changes to our practices with regards to the Personal Information we collect from you, we will notify you by e-mail to the e-mail address specified in your account and/or through a notice on the Platform. The date this Privacy Policy was last revised is identified at the top of the page. You are responsible for ensuring we have an up-to-date active and deliverable e-mail address for you, and for periodically accessing the Platform and reviewing this Privacy Policy to check for any changes.

9. Contact Us

If you have any questions, concerns, complaints or suggestions regarding our Privacy Policy or otherwise need to contact us, you may contact us at the contact information below or through the “Contact Us” page on the Platform.

How to Contact Us:

Upswing Health, Inc. 1177 High Ridge Road Stamford, CT 06905 Telephone: (201) 834-4786 E-mail: info@upswinghealth.com

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Identify Your Injury