Terms of Use for ExamFIT Services

WORKERFIT, LLC (hereafter referred to as "WORKERFIT") is the authorized seller of a proprietary software program and web platform called ExamFIT (hereinafter "ExamFIT Platform") that enables data capture and reporting for standardized exam or visit protocols that range in complexity from a brief movement screen to a comprehensive Functional Capacity Evaluation.

This Agreement contains the terms and conditions under which individuals and entities ("Users") may access and use the ExamFIT Platform content, services, tools and other material ("Content") on the ExamFIT website at www.ExamFIT.com. PLEASE READ THESE TERMS OF USE CAREFULLY. BY CLICKING THE LOGIN BUTTON DURING LOG IN TO EXAMFIT, YOU AGREE TO BE LEGALLY BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN DO NOT CLICK THE LOGIN BUTTON to signify your agreement to the Terms of Use for ExamFIT Services, AND YOU WILL HAVE NO ACCESS TO THE SERVICES. WORKERFIT RESERVES THE RIGHT TO CHANGE THE TERMS OF USE FROM TIME TO TIME. WHEN THE TERMS OF USE ARE CHANGED, THE NEW VERSION WILL BE POSTED ON THE WEBSITE AND YOU WILL BE NOTIFIED TO REVIEW THE NEW TERMS BEFORE CONTINUING TO ACCESS AND USE THE SITE UNDER THE NEW TERMS.

This Terms of Use Agreement applies to all USERS of the ExamFIT Platform. "USERS" refers to all individuals who access and/or use the ExamFIT Platform regardless of the level of access granted. USERS have varying levels of access/use of the ExamFIT Platform depending whether the USER is a PROVIDER ADMIN, EXAMINER, or REVIEWER. "PROVIDERS" are USERS whose access/use is granted through the PROVIDERS' licensing agreement with WORKERFIT. PROVIDERS may grant access to other levels of USERS (collectively "PROVIDER AUTHORIZED USERS") through the PROVIDER's Licensing Agreement with WORKERFIT. In addition to these Terms of Use, all USERS are subject to the terms referenced in the applicable PROVIDER Agreement with WORKERFIT. Any PROVIDER AUTHORIZED USER's access/use is deemed the access/use by the applicable PROVIDER.

Permitted Use

PROVIDER Users may use the ExamFIT Platform to:
  • create clinics under their subscription
  • set-up and manage projects to group data gathered under their subscription
  • create and manage all subjects (patients/workers) under their subscription
  • export de-identified project data that was collected under their subscription
  • grant more restricted permissions to EXAMINERS, or REVIEWERS in accordance with applicable laws and PROVIDER's Agreement with WORKERFIT
PROVIDER is ultimately responsible for determining and monitoring the level of permission access for each authorized user under the PROVIDER's License in accordance with applicable employment and privacy laws.

Except for the functionality intended for PROVIDER-AUTHORIZED USERS, no USER may re-sell or otherwise make the ExamFIT Platform available to any third party. 'Reselling' the ExamFIT Platform means any arrangement between the user and a third party (which may or may not be a PROVIDER-AUTHORIZED USER) whereby the user agrees to provide a third party with access to ExamFIT for service on a recurring basis in circumstances where such arrangement is substantially an alternative to such third party purchasing a PROVIDER license directly from WORKERFIT. WORKERFIT may suspend or curtail the ExamFIT service to the extent that WORKERFIT reasonably believes that such use is for the purpose of Reselling the Service without express permission by WORKERFIT.

EXAMINER Users may:
  • Create and manage subject data for subjects in clinics assigned to Examiner
  • Create and edit visits/exams for subjects under clinics and projects where the examiner is assigned.
  • Send visits out for review (co-sign) and publish visits/templates.
REVIEWER Users may:
  • Access visit/exam reports referred by Examiners and enter report comments to provide feedback about the content of reports assigned to them.
  • Publish acceptable reports or return the report for editing.

Terms that apply to all USERS:

Each authorized USER shall have a unique User Name and Password to log onto the ExamFIT Platform. USERS shall not disclose their User Name or Password to any other authorized or unauthorized person or allow any unauthorized person access to the ExamFIT Platform for any purpose whatsoever. USER agrees to promptly notify WORKERFIT if user becomes aware of any unauthorized access or disclosure of User Name or Password or any of the data entered into the ExamFIT Platform.

USER agrees to use the ExamFIT Platform only for its intended purposes and in accordance all local, state and federal laws that apply to your use, including but not limited to all laws and regulations related to privacy rights, the Americans' with Disabilities Act and its subsequent amendments, the Genetic Non-Disclosure Information Act, and any and all other applicable employment laws governing how employee information is obtained, used or stored by employers, their agents, business associates and assigns.

USER is responsible for accessing the ExamFIT Platform through a secure internet connection that encrypts data in-transit. USER should not attempt to access the ExamFIT Platform through a public Wi-Fi connection.

USER understands that the ExamFIT Platform is not intended to serve as a document retention or record keeping service for purposes of meeting USER's obligations under applicable laws. Therefore, you are solely responsible for downloading, storing and maintaining any and all data, attachments, and communication/referral records that require future access or that you may be required, by law or policy, to maintain. USER also agrees not to rely on the data and information entered into the ExamFIT Platform as a backup for any records you are legally required to maintain. WORKERFIT has no responsibility for restoring data in the event of loss or corruption of records that USERS are required to maintain.

If any USER downloads any links or attachments into the ExamFIT Platform, USER is responsible for making sure they are free of content which is offensive, scandalous, defamatory, pornographic or likely to be perceived as such by the general public; and are created with reasonable care and skill appropriate to the professional standing of the USER and the duty of care owed by the USER to any third party individuals or entities.

By accessing and/or using the ExamFIT Platform, USER agrees to waive any and all claims against WORKERFIT, its officers, employees, agents, vendors, subcontractors and assigns for penalties, fines or damages that result directly or indirectly from the PROVIDER's use of the ExamFIT Platform or its training and educational materials.

The USER must not:

  • translate, modify or create derivative works of the Service
  • except as expressly permitted by these terms for External Users, disclose, publish, distribute, sell, assign, lease, sublicense, market or transfer the Service
  • attempt to derive the source code, source files or structure of the software contained in the Service by reverse engineering, disassembly, decompilation or any other means
  • use the ExamFIT Platform except in accordance with all applicable laws
  • introduce into the ExamFIT Platform any "malware," such as, but not limited to, viruses, worms, and Trojan Horses
  • attempt to access the accounts of any other user of the ExamFIT Platform other than the USER's accounts
  • share log-in names or passwords with any person other than the individual to whom they were assigned
  • post, transmit or link from any unlawful, infringing, misleading, deceptive, threatening, libelous, defamatory, plagiarized, fraudulent, harassing, obscene, discriminatory, inflammatory, pornographic or profane material, spam or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or would otherwise violate applicable law
  • use the ExamFIT Platform in any manner that could damage, disable, undermine, overburden, or impair the ExamFIT Platform or the servers on which it runs or interfere with any other parties' use of the ExamFIT Platform
  • obtain or attempt to obtain any content through any means not intentionally made available or provided for through the ExamFIT Platform
  • use any of the logos, trademarks, service marks, or other indicators of origin appearing on the ExamFIT Platform
  • undertake penetration testing of the Service or use the Service in a manner which is intended to induce poor performance or failure of the Service

WORKERFIT's Responsibilities:

  • Apply software "bug fixes", functionality enhancements, software patches for the operating systems, applications software, database engine and storage facilities as needed in accordance with good industry practice.
  • Unless changes are anticipated to have a material impact on USERS, WORKERFIT may apply such changes without notice. If WORKERFIT anticipates downtime of the ExamFIT Platform for the purpose of applying changes, WORKERFIT will take reasonable steps to schedule downtime at a time and duration, which will minimize impact on USERS and will make reasonable efforts to give USER reasonable advanced notice of scheduled downtime.
  • Suspend operation of the ExamFIT Platform temporarily and without prior notice for the purpose of protecting the ExamFIT Platform from security or denial of service risks.
  • Use commercially reasonable efforts to check the Service contains no viruses or malware.
  • Support the PROVIDER with set-up of their account as described in the Provider agreement with WORKERFIT.
  • Respond to general inquiries from Users about features, benefits, security and technology requirements to implement the ExamFIT Platform.

HIPAA Business Associate Agreement

If USER is a "covered entity" or a "business associate" and data entered in the Platform is considered "protected health information" ("PHI") as those terms are defined in 45 CFR § 160.103, the terms of the HIPAA Business Associate Agreement ("BAA") provided here: Business Associates Agreement (Effective 8/9/2016), are incorporated into this Terms of Use Agreement by reference. In the event there is a conflict between the Provider's License/Subscription Agreement or this Terms of Use Agreement and the Business Associate Agreement, the terms of the License/Subscription Agreement will take precedence over the BAA, except if such application would violate applicable law.

Intellectual Property Rights

'Intellectual Property Rights' means copyright and all other legal and beneficial intellectual and industrial property rights (including patents, design rights (whether registered or unregistered), trademarks (whether registered or unregistered), database rights, know-how and confidential information) whether conferred by contract, common law or otherwise throughout the world no matter what such rights may be known as in any particular country in the world. WORKERFIT owns and retains all rights, title and interest in and to the Content, including but not limited to, all software and materials, patents, trademarks, copyrights, trade secrets, ideas, concepts, methodologies, formats, and other know-how furnished in the ExamFIT Platform in connection with the Content. All rights not expressly granted by this Agreement are reserved by WORKERFIT. USER agrees to not copy, modify, translate, reverse engineer, distribute, decompile, disassemble, destroy any proprietary marks or legends on, or create derivational works from the Content and to access/use the Content only as allowed by WORKERFIT and permissible under applicable laws.

Ownership of Information and Data entered into the System

PROVIDERS own all data entered into the ExamFIT Platform by PROVIDER and PROVIDER-AUTHORIZED USERS. WORKERFIT will not disclose PROVIDER's data to third parties without PROVIDER's permission except as required to comply with applicable laws or a court order. Notwithstanding the foregoing, USERS agree by entering data into the Platform, the USER grants to ExamFIT a license to access, and use de-identified exam data entered into the Platform for purposes of conducting research, aggregating subject fitness data by test category, creating reference information to support fitness screening, functional capacity evaluations and design of accommodations and any other lawful purpose as long as the provider and subjects are de-identified. USERS shall have no ownership rights in the data entered by other USERS or aggregated USER data disclosed to USER by WORKERFIT. USER agrees not disclose to any third party aggregated USER data or any part thereof that may be made accessible to the USER through the use of the ExamFIT Platform without WORKERFIT's written consent.

Fees

By accessing the ExamFIT Website and accessing/using the Content, USER agrees to pay for access in accordance agreed schedules of applicable fees and charges before such access/use. In most cases, PROVIDER-AUTHORIZED USERS fees will be determined and paid through the PROVIDER's Agreement with WORKERFIT.

Liability

USER shall indemnify and hold WORKERFIT harmless from any liabilities, damages, costs, and expenses arising out of any claim or allegation arising out of authorized or unauthorized access, use, loss of use or loss of data in the ExamFIT Platform.

WORKERFIT and USER each shall indemnify and hold harmless the other from any claim alleging that use of their respective materials as permitted by these terms infringe on any third party's Intellectual Property Rights and shall pay any liabilities, damages, costs, and expenses finally awarded therein or paid in settlement (to which the indemnifying party agrees). The indemnified party must promptly notify the other party of any such claim and shall take all reasonable steps to provide the indemnifying party (at the expense of the indemnifying party) with control over the defense and settlement of the claim.

Warranties and Limitations of Damages

USER warrants that it is lawfully entitled to upload and use the data and content uploaded onto the ExamFIT Platform, and where applicable, to authorize PROVIDER-AUTHORIZED USERS to access and/or use the data entered into the ExamFIT Platform. USER further warrants that any data, forms, report or other materials downloaded onto the ExamFIT Platform will not infringe the Intellectual Property Rights of any third party.

THE ExamFIT Platform IS PROVIDED "AS-IS" WITH NO WARRANTIES. WORKERFIT EXPRESSLY EXCLUDES AND DISCLAIMS ANY OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE AND USAGE OF TRADE. WORKERFIT DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, THAT ALL ERRORS WILL BE CORRECTED, OR THAT THE EXAMFIT PLATFORM WILL SATISFY CUSTOMER'S OR ANY THIRD PARTY'S REQUIREMENTS. WORKERFIT DOES NOT WARRANT OR GUARANTEE THE INTEGRITY OR THE SECURITY OF THE SERVICES OR OF THE CONTENT, INFORMATION OR DATA TRANSMITTED THROUGH OR CONTAINED WITHIN ANY PORTION OF THE ExamFIT PLATFORM.

WORKERFIT's AGGREGATE LIABILITY DURING EACH TERM FOR ANY DAMAGES UNDER THIS AGREEMENT (INCLUDING ANY INDEMNITY) SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY USER FOR THE SERVICE DURING SUCH TERM. IN NO EVENT SHALL EXAMFIT BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS OR LOST REVENUES SUFFERED AS A RESULT OF OR IN ANY WAY CONNECTED WITH THE ExamFIT PLATFORM, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN SPECIFICALLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS ON LIABILITY SHALL APPLY IRRESPECTIVE OF THE SUCCESS OR EFFECTIVENESS OF ANY EXCLUSIVE REMEDIES HEREUNDER.

NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT ANY LIABILITY FOR FRAUD OR FRAUDULENTMISREPRESENTATION OR FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OR FOR ANY OTHER LIABILITY WHICH MAY NOT BE EXCLUDED BY LAW.

Term and Termination

The term of each USER'S access is determined by the applicable PROVIDER Agreement with WORKERFIT. Upon termination or non-renewal of PROVIDER Agreement with WORKERFIT or failure to pay Fees, WORKERFIT will restrict the access and use of the ExamFIT Platform for all USERS associated with that PROVIDER Agreement with WORKERFIT. USERS will be able to access the ExamFIT Platform for thirty (30) days after termination only for the purpose of downloading USER data. WORKERFIT may delete all USER's content associated with a PROVIDER Agreement thirty (30) days after the termination date of the PROVIDER Agreement with WORKERFIT. USER is responsible for downloading a copy of USER content entered into the EXAMFIT Platform before content is deleted. WORKERFIT assumes no responsibility for loss of data due to USER's failure to download and maintain a copy of USER's content entered into the ExamFIT Platform.

Without limiting other remedies, WORKERFIT may limit, suspend, or terminate any User's access to the Website and/or access/use of any Content and/or alter, delay or remove Content at any time if ExamFIT, in its sole discretion, reasonably believes any term of this Agreement has been breached.

Geographical scope of the Service

The ExamFIT Platform is designed for use by users residing within the United States of America. Use of the ExamFIT Platform is restricted to users within the American continent (including those territories which are outside the United States of America).

Governing Law and Jurisdiction

Unless otherwise elected by WORKERFIT in writing for the particular instance (which WORKERFIT may do at its option), the sole jurisdiction and venue for actions related to the subject matter hereof shall be the state of Ohio and U.S. federal courts having within their jurisdiction the location of WORKERFIT's principal place of business in Ohio. By accessing/using the ExamFIT Platform, USER consents to the exclusive jurisdiction of such courts and agrees that process may be served in the manner provided herein for giving of notices or otherwise as allowed by Ohio or federal law.

Force majeure

WORKERFIT will not be liable to USER to the extent that it is prevented, hindered or delayed in the performance or observation of its obligations by reason of any circumstances beyond its reasonable control including industrial action, strike, walkout, accident, war, fire, explosion, earthquake, failure of the Internet, act of God or any cause or contingency beyond its control.

Severance

If any term in these terms is held invalid or unenforceable by a court or arbitrator of competent jurisdiction, such term shall be reduced or otherwise modified by such court or arbitrator to the minimum extent necessary to make it valid and enforceable.

No Partnership

These terms shall not be construed to create an agency or partnership between WORKERFIT and any USER. Neither party has the authority to bind the other, to incur any liability or otherwise act on behalf of the other, or to direct the employees of the other.

Waiver

Failure or neglect by WORKERFIT to enforce at any time any of the provisions of these terms shall not be deemed to be a waiver of WORKERFIT's rights or bar any future exercise of such right by WORKERFIT.

Assignment

USER's rights and obligations under this Agreement are personal to USER and may not in any circumstances be assigned, charged or transferred, without the prior express written consent of WORKERFIT. WORKERFIT may assign its rights and obligations under this Agreement, in part or in full, to any person or entity without limitation. WORKERFIT will notify USER of any assignment that may an effect on the terms of this Agreement, including but not limited to changing the functionality of the ExamFIT Platform or address that Notices must be sent to.

Notices

Notices served by WORKERFIT to the USER in connection with these terms may be served:

  • by online notifications to any USER when the USER logs into the ExamFIT Platform
  • by email to the last notified email address of any USER
  • by first class mail to the PROVIDER for the applicable PROVIDER Agreement at the last notified postal address of the PROVIDER

Notices served by the USER to WORKERFIT in connection with these terms may be served only in writing addressed to the Director of Operations, WorkerFIT, at 7051 Navajo Trail, Solon, OH 44139.