Last Revised: [5-21-18]
Please read this Terms of Service Agreement (“TOS Agreement”) carefully. This TOS Agreement between Medely, Inc., a Delaware corporation, (“Medely”, “we”, “us”, or “our”) and the user (“you” or “User”) govern the use of: (i) our website, https://www.medely.com/; (ii) the services and resources available or enabled via our Website (the “Services”); and (iii) all content, including, designs, graphics, text, illustrations, icons, multimedia, and other material that you see or read, and all related code (collectively, “Our Content”). Collectively the Website, Services, and Our Content are “Our Properties.”
This TOS Agreement applies to all users visiting, accessing, or using Our Properties. By clicking the “I accept” button, completing the registration process, or browsing our Website, you represent that: (1) you have read, understand, and agree to be bound by this TOS Agreement, (2) you are of legal age to form a binding contract with Medely, and (3) you have the authority to enter into the TOS Agreement personally or on behalf of the company (e.g. a medical facility) you named as the User, and to bind that company to the TOS Agreement. For clarity, the term “you” refers to the individual or legal entity, as applicable, identified as the User when you registered on the Website.
IF YOU DO NOT AGREE TO BE BOUND BY THIS TOS AGREEMENT, YOU MAY NOT ACCESS OR USE OUR PROPERTIES.
MEDELY DOES NOT EMPLOY, RECOMMEND, ENDORSE, OR GUARANTEE ANY PROFESSIONALS OR MEDICAL FACILITIES (AS DEFINED IN SECTION 2 (MEDELY IS A VENUE). OUR PROPERTIES ARE A VENUE FOR USERS TO CONNECT ONLINE. EACH USER IS SOLELY RESPONSIBLE FOR INTERACTING WITH AND SELECTING ANOTHER USER, CONDUCTING ALL NECESSARY DUE DILIGENCE, AND COMPLYING WITH ALL APPLICABLE LAWS.
THE ARBITRATION AGREEMENT IN SECTION 16 (ARBITRATION) OF THIS TOS AGREEMENT CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED. IN PARTICULAR, THE ARBITRATION AGREEMENT WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF OUR PROPERTIES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS TOS AGREEMENT.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”). Such Supplemental Terms will either be listed in this TOS Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the TOS Agreement is inconsistent with the Supplement Terms, the Supplemental Terms shall control with respect to such Service. This TOS Agreement and any applicable Supplemental Terms are referred to herein as the “Agreement.”
Except as provided in sections 16.9 and 18.7, below, this TOS Agreement is subject to change by us in our sole discretion at any time, such changes will not be applicable to pending arbitrations. Please regularly check our Website to view the then-current Agreement. When we make changes, we will make a new copy of the TOS Agreement available on the Website, make any new Supplemental Terms available on the affected Services on the Website, and update the ‘Last Revised’ date at the top of this TOS Agreement. Any changes to the Agreement will be effective immediately for new users of Our Properties and will be effective thirty (30) days after posting notice of such changes on our Website for existing Users (defined in Section 2 (Medely is a Venue)). We may require you to provide consent to the updated Agreement in a specified manner before we permit further use of Our Properties. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using Our Properties. Otherwise, your continued use of any of Our Properties constitutes your acceptance of such change(s).
If you have questions, complaints, or claims with respect to Our Properties, please contact us at the contact information below. We will do our best to address your concerns. If you feel your concerns were not addressed completely, we invite you to let us know for further investigation.
1315 3rd St., Ste 500
Santa Monica, CA 90401
Email: [email protected]
Phone: (888) 858-7660
Our Properties provide an online venue that connect users who are independent third-party providers of medical services (e.g. nurses and medical technicians) and are willing to fill short-term staffing positions (“Professionals”) with users who are independent third-parties that seek to contract with such Professionals for short-term staffing positions (“Medical Facilities” or “Facilities”). Each Medical Facility’s request for Professional Services that is submitted on Our Properties is hereinafter referred to as a “Request.” For each Request, the Professional who accepted the Request shall perform, for the duration of the short-term staffing position, the medical services that the Medical Facility entered in its Request (“Professional Services”). Collectively, Professionals and Medical Facilities are our “Users.”
2.1 Staffing Requests. Each Request will be for one Professional (i.e. to retain two Professionals, two Requests must be submitted). Each Request must contain the nature and type of Professional Services required from the Professional (e.g. I need a medical technician for a heart surgery), including, for example, a description of the needed services, the start and end time of the position, the location where the Professional Services must be performed, whether the Request is for an independent contractor or temporary employee, and other information that may be necessary or that we request. Each Request that a Professional has accepted and has fully performed to the satisfaction of the Medical Facility is hereinafter referred to as a “Completed Request.” Each Request for Professional Services that occurs on a recurring or regular basis (e.g. every day or certain days every week) is hereinafter referred to as a “Recurring Request.”
2.2 Only a Venue. We only offer a method for Medical Facilities and Professionals to communicate and contract with one another, and a medium to exchange money between Professionals and Medical Facilities. You acknowledge and agree that by submitting or accepting a Request, you enter into an agreement directly with another User. You acknowledge and agree that Medely is not a party to such agreements. We disclaim all liability arising from or related to any such agreements between Medical Facilities and Professionals except as related to our obligation to process payments pursuant to the Agreement.Medely does not:
2.3 Worker Classification. Medical Facilities are responsible for making their own decision regarding Professionals that they engage for Professional Services and should conduct their own investigations prior to engaging any Professionals. Although Professionals must undergo background checks, phone interviews and other verification processes in order to create an Account, we make no representations about and disclaim all liability associated with: (i) the suitability, reliability, and timeliness of the Professional Services provided by Professionals; and (ii) each Professional’s credentials, background, suitability, and reliability. Medical Facilities assume all liability for proper classification of Medical Professionals as independent contractors or employees based on applicable legal guidelines. Medical Facilities further warrant and represent that all classification decisions are proper and made in accordance with applicable law.
This Agreement does not create a partnership or agency relationship between the Medical Facility and Medely. Medely does not have authority to enter into written or oral –whether implied or express –contracts on behalf of the Medical Facility. Medely does not, in any way, supervise, direct or control the Professionals’ work or services performed in any manner. Medely does not set the Professional’s work hours and location of work, nor is Medely involved in determining the type or manner of compensation to be paid for any Request. Medely will not provide Professionals with training or any equipment, tools, labor or materials needed for a particular Request. Medely will not deduct any amount for withholding, unemployment, Social Security, or other taxes as it would in the case of an employee. Users will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority, in any state, with respect to the Professionals’ performance of the Professional Services. For contracts classified as independent contractor relationships, Medical Facilities may not require an exclusive relationship between the Professional and the Facility. A Professional classified as an independent contractor is free at all times to perform Requests, be employed by otherwise engage with persons or businesses other than the Facility, including any competitor of the Facility. For contracts classified as employer-employee relationships, Facilities will manage the Request through Medely’s payrolling program, where the Professional becomes an hourly employee of Medely’s staffing affiliate the Facility and the Professional enter into appropriate additional agreements. Users agree to indemnify, hold harmless and defend Medely from any and all claims arising out of or related to their Request, including but not limited to claims that a Professional was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that a Professional was misclassified (including, but not limited to taxes, penalties, interest and attorney’s fees), any claim that Medely was an employer or joint employer of a Professional, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits. Any disputes related to the Professional Services must be resolved directly between Professionals and Medical Facilities.
3.1 Our Properties. You agree that Medely and its affiliates, parents, subsidiaries, officers, employees, agents (“Affiliates”), licensors, partners, and service providers (“Suppliers”) own all rights, title, and interest in Our Properties (including the computer code, artwork, animations, methods of operation, moral rights, documentation, and features and functionality of our Website and software). Medely, its Affiliates, and Suppliers also reserve all rights not granted in the Agreement.
3.2 Copyright & Trademark. Our Properties are protected by copyright and other intellectual property laws throughout the world. and all related graphics and logos on or in connection with Our Properties (the “Medely Marks”) are our trademarks and may not be used in connection with any third-party services or products without our prior written permission. Any other trademarks, service marks, and trade names that appear on Our Properties are the property of their respective owners.
3.3 Open Source Software. Portions of Our Properties may include software that is subject to various “open source” or “free” licenses (“Open Source Software”). Open Source Software is subject to the terms and conditions imposed by the licensors of that Open Source Software (“Open Source Terms”). You agree that your use of Open Source Software is subject to and governed by the applicable Open Source Terms. To the extent of any conflict between any Open Source Terms and the Agreement, the Open Source Terms shall prevail in connection with the related Open Source Software. Notwithstanding anything to the contrary herein, we do not make any warranty with respect to Open Source Software.
3.4 Your Content & License. All content that you upload, post, transmit, or otherwise make available (“Make Available”) through Our Properties is hereinafter referred to as “Your Content.” We do not claim ownership of Your Content. You hereby grant to Medely a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right (including any moral rights) and license to: (i) use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content that is submitted to Our Properties. You warrant that the holder of any worldwide intellectual property rights, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Medely, are responsible for all of Your Content that you Make Available on Our Properties.
3.5 Other User Content. Except with respect to Your Content, you agree that you have no right or title in or to any content that appears on Our Properties.
3.6 Feedback. You agree that submission of any ideas, suggestions, comments, and proposals to us (“Feedback”) is at your own risk and that we have no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit Feedback. You hereby grant to Medely a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner all Feedback, and to sublicense the foregoing rights, in connection with the operation, maintenance, and enhancement of Our Properties.
4.1 License. Subject to your compliance with the Agreement, we hereby grant you a limited, revocable, non-exclusive, non-transferable, non-assignable (except pursuant to Section 18.2 (Assignment)) license to access, browse, and view any of Our Properties made available to our Users, and to reproduce portions of Our Properties available to Users for the sole purpose of using the Services for your personal and internal business purposes.
4.2 Responsibility for Content. All Users of Our Properties, including you, are responsible for content those Users Make Available through Our Properties (“User Content”).
4.3 No Obligation to Pre-Screen Content. You acknowledge and agree that we have no obligation to pre-screen any content, including User Content, although we reserve the right, in our sole discretion, to pre-screen, refuse, and remove any User Content. You hereby provide your irrevocable consent to such monitoring, and you acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content. In the event that we pre-screen, refuse, or remove any User Content, you acknowledge that we do so for our benefit, not yours.
4.4 Exercise Caution. When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. You are solely responsible for your interactions with other Users of Our Properties. We nor our Affiliates or third party providers are responsible for the conduct, whether online or offline, of any User of our Services.
4.5 Electronic Communications. You and Medely use electronic means to communicate, whether you use the Services or send us emails, or whether Medely posts notices on the Services or communicates with you via email. For contractual purposes, you: (a) consent to receive communications, including notifications, from Medely in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Medely provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in a hard copy writing. The foregoing does not affect your non-waivable rights.
4.6 Updates. You understand that Our Properties are evolving. As a result, you acknowledge and agree that we may update Our Properties with or without notifying you. You may need to update third-party software from time to time in order to use Our Properties.
4.7 Services May Vary. You acknowledge and agree that the selection and availability of our Services may vary from device to device (because of technical limitations), and user-to-user.
4.8 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions:
Any future release, update or other addition to Our Properties shall be subject to the Agreement. Any unauthorized use of Our Properties terminates the licenses granted by Medely within the Agreement.
To access our Services, you must be a User who has a registered account on our Website (“Account” and “Registered User”). Unregistered users (i.e. visitors) are only permitted to browse our Website in accordance with the Agreement, and may not access or use our Services.
5.1 Registration Process. A User who is a Medical Facility, may create an Account by visiting our Website and clicking the “Sign up” button, or by visiting https://medely.com/facility. You must enter the information requested, such as your first and last name, email address, company name, phone number, and password. Once you enter the requested information and agree to be bound by the Agreement, we will send an email to the email address you provided us to inform you that your Account is pending verification. Once your Account has been approved, you will receive another email from us.
5.2 Registration Data. In registering an Account on our Website, you:
5.3 Background Information on Professionals. Medely works with third party partners to perform identity verification, sex offender registry checks, global watch list registry check, national criminal records check, county criminal records checks on Professionals and drug screenings, and we receive information from them such as publicly available information about a Professional's criminal history.
5.4 Primary source verification. Medely works with third party partners or government entities to perform primary source verification on Professional's license/certification, and we receive information from them such as publicly available information about a Professional's license.
6.1 Types of Fees. Upon completion of a Request, the Medical Facility that made the Request will be charged: (1) a fee for the Professional’s performance of the Professional Services (“Professional Fee”); and (2) a fee for use of our Services (“Medely Fee”). Collectively, the Professional Fee and Medely Fee are the “Fees.” Each Medical Facility must pay the Fees as described in Section 7.1 (Medical Facility Payment Terms). All Fees are in US dollars unless otherwise specified herein or on the Services.
6.2 Amount of Fees. The Medical Facility that submitted the Request will be charged the amount of Fees listed on Our Properties (or if not listed on Our Properties, the amount communicated to the Medical Facility by Medely prior to submission of the Request). For a full list of our Fees please visit our “Fee Policy” page within your Account. Unless otherwise negotiated, Medely calculates these Fees at the default pricing rates based on the local market rate for the type of service that the Professional is engaged to perform and based on input from the Professionals. After a Professional accepts a job, the pricing rate for that job cannot be adjusted. The Fees charged for each Request varies as follows:
6.3 Fees Subject to Change. You agree that we, in our sole discretion, may modify and increase the Fees at any time and for any reason. If we modify the Fees, the modified Fees will not apply to Requests that were submitted prior to the modification.
6.5 Refunds.Medely has no obligation to provide refunds or credits, but may grant them in extenuating circumstances in our sole discretion, for instance, to correct any errors we made. We do our best to correct errors we make and that we become aware of. If you believe Medely made an error in processing your payment(s), please contact us at the contact information listed in Section 1 (Questions & Concerns).
A. Payments For Requests Through Medely. Our value rests in our thriving venue of Professionals and Medical Facilities. Medely receives payment when a Facility and a Professional pay and receive payment through the Medely platform. For 24 months from the time a User identifies or is identified by any party through the platform (“Non-Circumvention Period”), unless you pay the Opt-Out Fee in Section 6.6(B), you agree to use the platform as the exclusive method to request, make and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (“Medely Relationship”). It is a violation of the Agreement during the Non-Circumvention Period (a) for a Medical Facility to knowingly offer a payment of Fees outside of the context of Our Properties for a Request found on our platform; or (b) for a Professional to knowingly accept a Request with the intention of delegating the performance of the Professional Services to another health-care professional. YOU SHALL IMMEDIATELY NOTIFY US IF ANOTHER USER REQUESTS THAT PAYMENT BE MADE THROUGH CHANNELS OTHER THAN THOSE PROVIDED OR SPECIFIED BY MEDELY.
B. Opting Out. Users may opt-out of the obligation in Section 6.6(A) with respect to each Medely Relationship if the User pays Medely an opt-out fee for each such relationship (“Opt-Out Fee”). The Opt-Out Fee is computed as followsThe Opt-Out Fee is computed as follows 18% of the anticipated annualized salary or wages for one year if the healthcare facility offers the Professional permanent employment or per-diem. Medely, in its sole discretion, may determine whether a User violated Section 6.6. In the event a violation is identified, Medely or its affiliates may (1) charge your Payment Provider the Opt-Out Fee (including interest), to the extent permitted by law, or may send you an invoice for the Opt-Out Fee (including interest), which the User shall pay within 30 days; (2) terminate your account and revoke your authorization to use the platform; and/or (3) charge you for all losses, costs and reasonable expenses (including reasonable attorney’s fees) related to investigating such breach and the collection of such fees.
For purposes of this Section 7, “you” refers only Medical Facilities (and no other Users). The following terms apply only to Medical Facilities:
7.1 Medical Facility Payment Terms.
Acceptable User Conduct.When accessing or using Our Properties, you agree that you will not, under any circumstances:
You agree to indemnify and hold Medely, its Affiliates, and Suppliers (collectively, “Indemnified Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your use of, or inability to use, Our Properties; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. For the avoidance of doubt, this indemnification provision applies to any claims that a Professional was misclassified as an independent contractor, and any claims arising from or related to such misclassification. We reserve the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses. This provision does not require you to indemnify any of the Indemnified Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this Section 8 will survive any termination of your Account, the Agreement, or your access to Our Properties.
9.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF OUR PROPERTIES IS AT YOUR SOLE RISK, AND OUR PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL ITS FAULTS, INCLUDING OMISSIONS AND ERRORS. MEDELY, ITS AFFILIATES, AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ARISING FROM USE OF OUR WEBSITE.
9.2 Your Use. MEDELY, ITS AFFILIATES, AND ITS SUPPLIERS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY, OR DAMAGE ARISING FROM OR IN CONNECTION WITH YOUR USE OF OUR PROPERTIES.
9.3 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT MEDELY, ITS AFFILIATES, AND ITS SUPPLIERS ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD US, OUR AFFILIATES AND OUR SUPPLIERS LIABLE, FOR THE CONDUCT OF USERS ON THE WEBSITE, AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH USERS RESTS ENTIRELY WITH YOU.
9.4 No Liability for User Interactions. MEDELY, ITS AFFILIATES, AND ITS SUPPLIERS DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USER; AND YOU ACKNOWLEDGE THAT MEDELY IS NOT ABLE TO CONTROL OR SUPERVISE YOUR INTERACTIONS OR TRANSACTIONS WITH OTHER USERS OF OUR PROPERTIES. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR SUCH INTERACTIONS OR TRANSACTIONS. MEDELY RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO (I) MONITOR ANY SUCH DISPUTE OR (II) UPON YOUR REQUEST, INTERVENE IN SUCH DISPUTE FOR THE PURPOSE OF RESOLVING THE DISPUTE, PROVIDED THAT MEDELY WILL NOT BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER ARISING FROM ANY MONITORING OR INTERVENTION OF SUCH ACTIVITIES.
10.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL MEDELY, ITS AFFILIATES, OR ITS SUPPLIERS BE LIABLE FOR ANY: (i) LOSS OF PROFITS, REVENUE OR DATA; (ii) INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF IN CONNECTION WITH OUR PROPERTIES; (iii) DAMAGES OR COSTS DUE TO PROCUREMENT OF SUBSTITUTE SERVICES, OR (IV) LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE OF OUR PROPERTIES OR THAT ARE IN ANY WAY RELATED TO THE USERS INTRODUCED TO YOU BY OUR PROPERTIES, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR OUR PROPERTIES.
10.2 Quality of Professional Services. THE QUALITY OF PROFESSIONAL SERVICES REQUESTED THROUGH THE USE OF OUR PROPERTIES IS ENTIRELY THE RESPONSIBILITY OF THE PROFESSIONAL WHO PROVIDES SUCH PROFESSIONAL SERVICES. MEDICAL FACILITIES UNDERSTAND THAT BY USING THE SERVICES, THEY MAY BE EXPOSED TO SERVICES THAT ARE POTENTIALLY HARMFUL, UNSAFE, OR OTHERWISE OBJECTIONABLE, AND THAT USE OF THE PROFESSIONAL SERVICES, AND SUCH PROFESSIONALS, IS AT THEIR OWN RISK.
10.3 Cap on Liability. UNDER NO CIRCUMSTANCES WILL MEDELY, ITS AFFILIATES, OR ITS SUPPLIERS BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (1) THE TOTAL AMOUNT PAID TO MEDELY IN RELATION TO YOUR REQUESTS DURING THE TWELVE-MONTH PERIOD PRIOR TO THE ACT, OMISSION, OR OCCURRENCE, GIVING RISE TO SUCH LIABILITY, OR (2) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO ANY LIABILITY OF MEDELY OR ITS AFFILIATES FOR NEGLIGENCE, FRAUD OR FRAUDULENT MISREPRESENTATION.
10.4 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
10.5 Basis of Bargain. The limitations of liability set forth above are fundamental elements of the basis of the bargain between you and us.
In accordance with the Digital Millennium Copyright Act of 1988, Medely promptly responds to claims of copyright infringement committed on Our Properties if such claims are reported to our designated Copyright Agent. If you believe your work has been posted on Our Properties in a way that constitutes copyright infringement, please deliver the following information to our designated Copyright Agent at the address below:
Our designated Copyright Agent: [[email protected]]
12.Violations. If we become aware of any possible violations, or if we, in our sole discretion, determine that you breached any portion of the Agreement or have otherwise demonstrated conduct inappropriate for Our Properties, we reserve the right to:
13.1 Term. The Agreement shall commence on: (i) the date you accept the Agreement or (ii), if earlier, the date you first used any of Our Properties (the “Effective Date”), and will remain in full force and effect while you use Our Properties unless terminated earlier in accordance with the Agreement.
13.2 Termination. We reserve the right to block access to, suspend, or terminate your access to Our Properties or your Account, with or without notice, if we, in our sole discretion, determine that you are in breach of the Agreement.
13.3 Effect of Termination. In the event that we terminate your access to Our Properties and/or your ability to create an Account, we may remove your access from, bar your right to further use, and delete your password and Account on our Website. Termination of access to Our Properties shall terminate the Agreement. All provisions of the Agreement that should survive termination, shall survive, including ownership provisions, warranty disclaimers, and limitations of liability.
13.4 No Subsequent Registration. If we discontinue your ability to access Our Properties and/or create an Account, you agree that you shall not attempt to re-register with or access Our Properties, for example, by using a different username. In the event you violate this Section 13.4, we reserve the right, in our sole discretion, to immediately take any and all of the actions set forth herein without any notice or warning to you.
Our Properties can be accessed from countries around the world, but our Services are only available in the United States. If you are a User outside the United States, any references to Services in your country does not imply any intention to announce such Services in your country. Medely makes no representations that Our Properties are appropriate or available for use in locations outside the United States. Those who access or use Our Properties from other countries do so at their own volition and are responsible for compliance with local law.
You acknowledge and agree that, except as otherwise expressly provided in the Agreement, with the sole exception of the Arbitration provisions below, there shall be no third party beneficiaries in to the Agreement.
Please read the following arbitration agreement in this Section 16 (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Medely and limits the manner in which you can seek relief from us.
16.1 Applicability of Arbitration Agreement.You agree that any dispute or claim relating in any way to your access or use of our Website, to any Services distributed through our Website, or to any aspect of your relationship with Medely, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Medely may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).
IF YOU AGREE TO ARBITRATION WITH MEDELY, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST MEDELY ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF, UNLESS OTHERWISE PERMITTED BY LAW. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST MEDELY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF PERMITTED BY APPLICABLE LAW BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THE AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
16.2 Arbitration Rules and Forum. The Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) governs this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent [California Corporate Agents, Inc. 16830 Ventura Blvd, Suite #306, Encino, CA 91436]. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider or another alternative resolution provider based on the written agreement of the parties. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay the filing, administrative, hearing and/or other fees and you cannot obtain a waiver from JAMS, Medely will pay them for you. In addition, Medely will reimburse all such filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous and Medely would otherwise be entitled to an award of such fees and costs had the matter been heard in court. Likewise, Medely will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
16.3 Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and Medely. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties unless all parties (including Medely) consent in writing. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the TOS Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis to the same extent that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
16.4 Waiver of Bench or Jury Trial. YOU AND MEDELY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Medely are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 16.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Arbitration Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
16.5 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
16.6 Severability.If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
16.7 Survival of Arbitration
Agreement.This Arbitration Agreement will survive the termination of your relationship with Medely.
16.8 Modification. Notwithstanding any provision in the Agreement to the contrary, you agree that if Medely makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) for which you have demanded arbitration or then pending in arbitration.
In accordance with California Civil 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.
18.1 Notice. Where we require that you provide an email address, you are responsible for providing us with your most current email address. If the last email address you provided to us is not valid, or for any reason is not capable of delivering to you any notices required or permitted by the Agreement, our dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to us at the physical address listed in Section 1 (Questions & Concerns). Such notice shall be deemed given when received by Medely by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail.
18.2 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
18.3 Force Majeure. Any delay or failure to perform by us or you (except the payment of money owed) will not be considered a breach of this Agreement if such delay or failure to perform is caused by causes outside our reasonable control, including Internet service interruptions, or governmental demands or requirements.
18.4 Exclusive Venue. To the extent the parties are permitted under the TOS Agreement to initiate litigation in a court, both you and Medely agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Los Angeles County, California.
18.5 Governing Law. The Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.
18.6 Export Control. You may not use, export, import, or transfer Our Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Our Properties, and any other applicable laws. In particular, but without limitation, Our Properties may not be exported or re-exported: (a) into any U.S. embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Our Properties, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a country that supports terrorists, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Our Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that our Services and/or technology are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer our Services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
18.7 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. Subject to any limitations set forth in section 16, the Agreement may be amended or superseded only be a mutually-executed writing. As used herein, “including” means “including without limitation”. The headings used in the Agreement are included only for purposes of convenience and shall not limit or otherwise affect the construction of the Agreement.
18.8 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
18.9 Severability. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of you and us, and the remaining portions shall remain in full force and effect.