Last Revised: [4-21-18]
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/ (“Website”); (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 17 (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. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (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.”
THE Agreement is subject to change by us in our sole discretion at any time. 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).
[1460 4th St Ste 306 Santa Monica CA 90401, Attn: Support]
Email: [[email protected]]
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, the job description, the start and end time of the position, the location where the Professional Services must be performed, 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:
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 19.2 (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 hardcopy 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.
5.1 Registration Process. https://www.medely.com/professionals. There, you must enter the information requested, such as your first and last name, email address, and the geographic area where you are willing to perform Professional Services (e.g. Los Angeles). Once you enter the requested information and click “get started,” we will direct you to our registration form, where you must enter more information about yourself, such as health-related license number, phone numbers, work history, and other information we request. Once you enter the requested information and agree to be bound by the Agreement, we will review your registration form and call you at the phone number you provided us in order to interview you before we permit you to create an Account. Once your Account has been approved, you will receive an 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.” 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 by the Professional, 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.
7.1 No Circumvention. Our value rests in our thriving venue of Professionals and Medical Facilities. It is a violation of the Agreement (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 PROVIED OR SPECIFIED BY MEDELY.
7.2 Making Payments Through Medely. You acknowledge and agree that a substantial portion of the compensation Medely receives for making the Site available to you is collected through the Service Fee described in Section 6. Medely only receives this Service Fee when a Facility and a Professional pay and receive payment through the Site. Therefore, for 18 months from the time you identify or are identified by any party through the Site (the “Non-Circumvention Period”), you agree to use the Site as your 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 (the “Medely Relationship”). For the avoidance of doubt, if you, or the business you represent, did not identify and were not identified by another party through the Site, such as if you and another User worked together before meeting on the Site, then the Non-Circumvention Period does not apply. If you use the Site as an employee, agent, or representative of another business, then the Non-Circumvention Period applies to you and other employees, agents, or representatives of the business when acting in that capacity with respect to the other User.
Except if you pay the Opt-Out Fee (see Section 7.3), you agree not to circumvent the Payment Methods offered by the Site. By way of illustration and not in limitation of the foregoing, you agree not to:
If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to Medely by sending an email message to: [email protected]
If you refuse to accept any new version of the Terms of Service or elect not to comply with certain conditions of using the Site, such as minimum rates supported on the Site, and therefore choose to cease using the Site, you may pay the Opt-Out Fee for each other User you wish to continue working with on whatever terms you agree after you cease using the Site.
7.3 You may opt-out of the obligation in Section 7.2 with respect to each Medely Relationship only if the Healthcare Facility or Professional pays Medely an opt-out fee for each such relationship (the “Opt-Out Fee”).
(a) interest at the rate of 18% per annum or the maximum rate permitted by applicable law, whichever is less, on the amount calculated in
(b), from the date Client first makes payment to the subject Professional until the date the Opt-Out Fee is paid;
(c) and the greater of:
(i) $7,500 or
(ii) 25% of the anticipated annualized salary or wages for one year if the Healthcare Facility offers Professional employment directly; or
(iii) all Service Fees that would be earned by Medely from the Medely Relationship during the Non-Circumvention Period, computed based on the annualized amount earned by Professional from Client during the most recent normalized 8-week period, or during such shorter period as data is available to Medely;(iv) provided, however, that if the amount in (ii) and (iii) cannot be ascertained due to uncertainty or lack of sufficient information, then Medely and you agree that fee shall be $7,500; if only one of (ii) or (iii) can be ascertained, then Medely and you agree that amount shall be used if it is greater than $7,500.
If Medely determines, in its sole discretion, that you have violated Section 7, Medely or its Affiliates may, to the maximum extent permitted by law (x) charge your Payment Method the Opt-Out Fee (including interest) if permitted by law or send you an invoice for the Opt-Out Fee (including interest), which you agree to pay within 30 days, (y) close your Account and revoke your authorization to use the Site and Site Services, and/or (z) charge you for all losses and costs (including any and all time of Medely’s employees) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees.
8.1 Professional Registration Data. In addition to the terms set forth in Section 5.2 (Registration Data), you:
8.3 Professional Payment Terms.
10.1 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 AFFLIATES, AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ARISING FROM USE OF OUR WEBSITE.
10.2 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.
10.3 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 AFFLIATES 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.
10.4 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.
11.1 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.
11.2 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.
11.3 Cap on Liability. UNDER NO CIRCUMSTANCES WILL MEDELY, ITS AFFLIATES, 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.
11.4 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.
11.5 Basis of Bargain. The limitations of liability set forth above are fundamental elements of the basis of the bargain between you and us.
Our designated Copyright Agent: [[email protected]]
14.1 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.
14.2 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.
14.3 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.
14.4 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 14.4, 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.
17.1 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.
17.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of 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. Upon the written agreement of the parties, the arbitration may proceed pursuant to the Federal Rules of Civil Procedure and the Federal Rules of Evidence, or the civil procedure and rules of the jurisdiction in which the arbitration proceeding is venued. If the arbitrator finds that you cannot afford to pay the filing, administrative, hearing and/or other fees of JAMS, or another alternative dispute resolution provider and 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. 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.
17.3 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. 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 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 that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
17.4 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 17.1 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.
17.5 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 USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER. In the event that this subparagraph is deemed invalid or unenforceable, neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in Section 19.4 (Exclusive Venue).
17.6 Thirty-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the address listed in Section 1 (Questions & Concerns) within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, and the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. The notice must be post-marked or delivered in person by no later than 30 calendar days after the date of the signature of the TOS Agreement. If you opt out of this Arbitration Agreement, all other parts of the Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
17.7 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.
17.8 Survival of Arbitration
Agreement. This Arbitration Agreement will survive the termination of your relationship with Medely.
17.9 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) that you had already provided notice to us.
19.1 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.
19.2 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.
19.3 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.
19.4 Exclusive Venue. To the extent the parties are permitted under the 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.
19.5 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.
19.6 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.
19.7 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. 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.
19.8 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.
19.9 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.
[END OF TOS AGREEMENT]