User Agreement

 

General Terms of Use for all VectorCare Users

We recently updated our Terms of Use for all individual users of the VectorCare platform. Continued use of the platform indicates the acceptance of these terms.

Version 1

Effective Date:  December 01, 2019

Last Updated Date:  December 01, 2019

VectorCare, Inc. (“VectorCare,” “we,” us,” or “our”) offers online services, including access and use rights to the VectorCare Care Coordination platform for uploading and managing profiles and credentials (collectively, the “Services” or “Platform” and such terms may be used interchangeably for convenience).  Our Platform includes functions and features designed to enable you and other individuals to create and upload certain information and documentation pertaining to your profile and credentials for review by certain potential third party Service Requestor or Service Provider organizations using our Platform (each an “Organization” or “Organizational Platform Participant”).  These Organizations use our Platform to identify, coordinate, and arrange services (e.g., transportation, home health care, and other services), transactions, and other activities between Organizations, to assist in managing their workforce, and for other purposes.  We are not an Organizational Platform Participant, but we facilitate their potential recruitment and relationship(s) with you and transactions between them.  These General Terms of Use (the “TOU”) are for individuals who desire to be recruited or engaged, directly or indirectly, by or through, Organization Platform Participants, as further described below.

These TOU are a binding legal agreement that apply to any access or use of the Services by you for the purposes described above. By clicking “I agree” or any similar acknowledgement, access or using the Services or Platform you are indicating that you have read, agree to, and are bound by these TOU.  You also agree and represent that you are who you indicate.   

THESE TOU INCLUDE ARBITRATION AND OTHER PROVISIONS THAT LIMIT YOUR REMEDIES AND OUR LIABILITY; AN AUTOMATIC RENEWAL PROVISION IS ALSO INCLUDED, BUT YOU MAY CANCEL AS DESCRIBED IN SECTION 9.  IF YOU DO NOT AGREE TO BE BOUND BY THESE TOU, YOU MAY NOT ACCESS OR USE THE SERVICESVectorCare assumes no liability for any ORGANIZATIONAL PlATFORM PARTICIPANTS OR THEIR EMPLOYEES, CONTRACTORS, OR REPRESENTATIVES, INCLUDING THEIR ACTS OR OMISSIONS, OR THAT YOU WILL NECESSARILY BE EMPLOYED, ENGAGED OR PAID BY ANY SUCH ORGANIZATIONAL PLATFORM PARTICIPANTS.    

  1. General.

1.1            These TOU apply generally to all Services we provide or make available to you, except as otherwise stated in the Agreement.  Additional Supplemental Terms may apply for specific functions, features, application program interfaces, or modules relating to the Services as and if expressly identified as a “Supplement Term” on our website or when activating or using that function, feature, application program interface, or module. If these TOU are inconsistent with such Supplemental Terms, the Supplemental Terms shall control with respect to its specific subject matter for a particular function, feature, application program interface or module or as otherwise stated in the Supplemental Terms.  These TOU and any applicable Supplemental Terms are referred collectively as the “Agreement”.  Notwithstanding anything to the contrary, to the extent you are or become an employee, agent or representative of an Organizational Platform Participant, your access and use of the Services for that Organization is subject to the terms of use and agreement between us and that Organizational Platform Participant.

1.2            Our current fee(s) (as and if applicable) are identified on our website or in the Platform.  Services, fees, subscription plans, and free trials are subject to change or cancellation from time to time by us.  You may cancel your subscription plan and cease using the Services in any month if we make such a change that impacts you or if you do not wish to continue using an applicable Service after the change, unless expressly provided otherwise for Services or plans subject to Supplemental Terms including longer commitment periods.  All fees paid to us are non-refundable, except as expressly provided otherwise in the Agreement.

1.3            We know that privacy and data security is important. For this reason, we have created a privacy policy that describes our collection, use and disclosure practices regarding any personal information in our possession or control. While there is no such thing as “perfect security”, we will take reasonable steps to help ensure the safety of your personal information. However, you understand and agree that such steps do not guarantee that the Services are invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities. We reserve the right to cooperate with local, state, provincial and national authorities in investigations of improper or unlawful activities and this may require the disclosure of personal information. We may also report to other organizations about improper or unlawful user activities and this reporting may include disclosure of personal information relating to those individuals conducting such improper or unlawful activities.  In addition, our Services may track data relating to you and your location(s); we may use and disclose that and other data to facilitate, identify, process, analyze or report on actual or potential transportation or other services or offerings, and you hereby authorize us to do so.

1.4            PLEASE NOTE THAT the Agreement is subject to change by us.  When changes are made, we will make a new copy of the TOU or Supplemental Terms available on our website or through the affected Service.  We will also update the “Last Updated” date.  If we make any material changes, and you have registered to use the Services, we will also send an e-mail to an e-mail address you provided to us in the Platform.  Any changes will be effective immediately for new users and will be effective thirty (30) days after posting of notice of such changes for existing users, provided that any material changes shall be effective upon the earlier of thirty (30) days after posting of notice of such changes or thirty (30) days after dispatch of an e-mail notice of such changes.  We may require you to provide consent to the updated TOU in a specified manner before further use of the Services is permitted.  If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services.  Otherwise, your continued use of the Services constitutes your acceptance of such change(s).  PLEASE REGULARLY CHECK OUR WEBSITE AND PLATFORM TO VIEW THE THEN-CURRENT AGREEMENT, FEES, PLANS, AND SERVICES.

  1. Services, License and Restrictions.

2.1            Our Services, including the Platform software, and all other information and content contained within or available through the Services (collectively, the “VectorCare Materials”) are protected by copyright and other laws throughout the world.  Subject to the Agreement, we grant you a limited license to access and use the VectorCare Materials for the sole purpose of using the Services as contemplated under this Agreement and our documentation and policies.

2.2            The rights granted to you are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the VectorCare Materials, (b) you shall not use the Services or VectorCare Materials for any illegal purpose or for any purpose other than as contemplated in VectorCare’s documentation; (c) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the VectorCare Materials except to the extent the foregoing restrictions are expressly prohibited by applicable law; (d) you shall not use any manual or automated software, devices or other processes to “scrape” or download data from the Platform, except as necessary to use the Services as authorized by us; (e) you shall not access the VectorCare Materials in order to build (or have another build) a similar or competitive website, application or service or to circumvent fees that would otherwise apply under the Agreement; (f) except as expressly stated herein, no part of the VectorCare Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the VectorCare Materials; and (h) you shall not use the Services to mislead or deceive any one or interfere with the operations of any one, including us and Organizational Platform Participants.

2.3            In connection with certain Services, now or in the future, we may make available a mobile application (“Mobile App”) for your use on mobile devices.  You acknowledge and agree that the availability of the Mobile App is dependent on the third party from which you received the Mobile App, e.g., the Apple iPhone or Android app stores (“App Store”), and you may only use that Mobile App on the applicable App Store’s designated devices and operating systems and in accordance with their usage terms and policies.  You acknowledge that this Agreement is between you and us and not with the App Store, and the Mobile App is part of the Platform and subject to the applicable provisions of these TOU and any applicable Supplemental Terms.  VectorCare, not the App Store, is solely responsible for the Mobile App, Services and the VectorCare Materials thereof, maintenance, support, and warranty therefor, and addressing any claims relating thereto (e.g., liability, legal compliance, or intellectual property infringement), all as described in the Agreement.  In order to use the Mobile App, you must have access to a wireless network, and you agree to pay all fees associated with such access.  You also agree to pay all fees (if any) charged by the App Store in connection with the Mobile App.  You agree to comply with, and your right to use the Mobile App is conditioned upon your compliance with, all applicable third party terms and policies (e.g., the App Store’s terms and policies) when using the Mobile App.  You acknowledge that the App Store (and its subsidiaries) are third party beneficiaries of this provision and will have the right to enforce it. 

2.4            VectorCare, its suppliers and licensors reserve all rights not granted in the Agreement.   Any unauthorized use by you terminates the licenses granted by us.

2.5            Certain items of software code provided or used with our Services or VectorCare Materials may be subject to “open source” or “free software” licenses (“Third Party Code”), a list of which is available on the website and/or in the documentation as necessary. The Third Party Code is not subject to the licensing terms and conditions of this TOU, except for the disclaimers and limitations of liability. Instead, each item of Third Party Code is licensed under the terms of the license that accompanies such Third Party Code. Nothing in these TOU limit your rights under, or grants rights that supersede, the terms and conditions of any applicable license for the Third Party Code, including any rights to copy, modify, or distribute Third Party Code under the applicable license. If we make modifications to such Third Party Code and if the applicable license requires that such modifications be made available and we do not already publish such modifications via the applicable Third Party Code community, then we will make our modifications available on its website.

2.6            The Services can be accessed from countries around the world but is only intended for use and access in the United States of America by those authorized to work within the United States of America.  We make no representation that the Services are appropriate or available for use by individuals in other locations.  Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.

 

  1. Registration.

3.1            In order to access certain features related to the Services you may be required to register. In registering, you agree to (1) provide true, accurate, current and complete information as prompted by the registration process (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.  You represent that you are (1) at least thirteen (13) years old; (2) of legal age and otherwise authorized to form a binding contract; and (3) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You agree that you shall monitor your account to restrict use by unauthorized personnel, and you will accept full responsibility for any unauthorized use.  If you provide any information or documents that are untrue, inaccurate, counterfeit, misleading, not current or incomplete, or VectorCare has reasonable grounds to suspect that such information or documents are untrue, inaccurate, counterfeit, misleading, not current or incomplete, VectorCare has the right to suspend or terminate your Services and account and refuse any and all current or future use of the VectorCare Materials and/or the Services (or any portion thereof).  You agree not to create an account using a false identity or information, or on behalf of someone other than who you purport to be.  You agree not to create an account or use the Services if you have been previously removed by VectorCare, or if you have been previously banned from the Services. 

3.2            You are responsible for all activities that occur under your account. You may not share your account or password with anyone, and you agree to (1) notify VectorCare immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your account at the end of each session.

3.3            You must provide all equipment and software necessary to connect to, use, and receive the Services, which may include desktop or mobile devices that are suitable to connect with and use the Services.  You are solely responsible for any fees, including telecommunication, Internet connection or mobile fees, that you incur when accessing or using the Services. Our Services may utilize the Global Positioning System (“GPS”) device on your equipment or other location tracking information, and rely on your telecommunication service provider (e.g., AT&T, Verizon, T-Mobile, Sprint, and others). If your applicable device does not have coverage, network capacity, and reception, or such connection is congested, jammed, or otherwise unavailable, our Services may not work properly.  Additionally, Services may not be available or accessible in all areas or at certain times.  ACCORDINGLY, YOU SHOULD NOT SOLELY RELY ON VECTORCARE MATERIALS OR SERVICES.  PLEASE BE AWARE THAT NOT ALL OF OUR SERVICES ARE AVAILABLE ALL THE TIME OR EVERYWHERE.  The area that you are located may affect the Services.

3.4            You hereby authorize VectorCare (and/or Organizational Platform Participants and/or third party contractors) to run any type of legally permitted background, credit, identity, or other checks desired based on information you provide in the Platform, including checks on your qualifications and credentials.  However, we are not under any obligation to run any such checks. VectorCare may remove you from the Platform at its discretion if it has a good faith concern regarding you, including your identity, background, or prior performance, or any other health, safety, or similar risk. 

  1. Content.

4.1            You acknowledge that all information, data, documents, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Services, whether publicly posted or privately transmitted (collectively “Content”), are the sole responsibility of the party from whom such Content originated.  This means that you, and not VectorCare, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available, and other users or participants of the Services, and not VectorCare, are similarly responsible for all Content they make available (“Other User Content”).

4.2            You acknowledge that VectorCare has no obligation to pre-screen or validate Content provided by you or any other users or participants, although VectorCare reserves the right in its sole discretion to pre-screen, validate, refuse or remove any Content from the Platform or identify Content as unverified or inaccurate.  You hereby provide your irrevocable consent to such monitoring, characterization, and recording. 

4.3            Without limiting our other rights, we are entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including Your Content, to (1) comply with applicable laws, regulations, legal process, or governmental request; (2) enforce the Agreement; (3) respond to any claims; (4) respond to requests or inquires for services or support; or (5) protect rights, property or personal safety as we, in our sole discretion, believe to be necessary or appropriate.

  1. Ownership.

5.1            Except with respect to Your Content and Other User Content, you agree that VectorCare and its suppliers own all rights, title and interest in the Services and other VectorCare Materials.   You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or other VectorCare Materials.

5.2            We do not claim ownership of Your Content.  However, you hereby grant us a license and right to use Your Content in connection with the Services, make it available, as appropriate, to Organizations and as otherwise appropriate in connection with the Services and Platform.

5.3            You agree that submission of any ideas, suggestions, documents, and/or proposals to us through suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that we have no obligations (including obligations of confidentiality) with respect to such Feedback.  You hereby grant to us 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, any and all Feedback, and to sublicense the foregoing rights.  You also hereby grant us a fully paid, royalty-free, perpetual, irrevocable, worldwide, and fully sublicensable right to aggregate and analyze your usage patterns and other information pertaining to the Services to improve the Services, develop new services and products, and for analytical purposes so long as in each such case it is not readily traceable back to you and does not include personal information or violate applicable laws or regulations.

  1. Fees and Payment.

If applicable, you agree to pay us the fees and other amounts due for the Services as described in our then current published documentation on our website or the Platform or as otherwise expressly agreed by you and us in writing.  You must provide us with a valid credit card (e.g., Visa or MasterCard) or other payment method accepted by us as and if requested to use certain Services.  Your third party credit card or other payment processor agreement governs your use of the designated credit card or other payment method, and you must refer to that agreement and not this Agreement to determine your rights and liabilities thereunder.  By providing us such information, you agree that we are authorized to immediately invoice and charge your account for all amounts due and payable to us hereunder and that no additional notice or consent is required.  You agree to immediately notify us of any change in your billing address or the credit card or other account used for payment.  You will pay us directly by another designated method if the credit care or other payment method designated above is declined or subject to a chargeback.  Amounts not timely paid to us will be subject to a late fee of 1% per month or the maximum rate allowed under applicable law.  VectorCare reserves the right at any time to change its prices, fees, payment, and billing methods upon posting such change on the Platform, and your continued use of the Platform thereafter constitutes your acceptance of such change.

6.2            Our fees are exclusive of any applicable sales, use, service, or similar taxes. If any Services or related activities are subject to such tax in any jurisdiction, you (or your customer) will be responsible for payment of such tax, and any related penalties or interest.  You will indemnify us for any liability or expense we may incur in connection therewith. 

6.3            Your subscription plan will continue indefinitely until terminated in accordance with the Agreement, unless expressly provided otherwise.  You agree that your account will be subject to this automatic renewal feature unless you cancel your subscription pursuant to VectorCare’s then current policies and the Platform’s functionality. 

6.4            You must notify us in writing within seven (7) days after receiving your credit card or other statement, if you dispute any of our charges on that statement or such dispute will be deemed waived.  Billing disputes should be notified to the following address: VectorCare Billing Disputes, 28 Liberty Ship Way Sausalito, CA 94965.

  1. Indemnification and Insurance.

7.1            You agree to indemnify and hold us, our affiliates, and our and their officers, shareholders, successors and assigns harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your relationship or interactions with Organizations, including any decisions you or they make in connection with your employment or other relationship or their decisions to hire, terminate, contract with, or pay you; (b) your Content or Other User Content; (c) your use of, or inability to use, the Services, Platform or VectorCare Materials; (d) your violation of the Agreement or your violation of any rights of another party; (e) your violation of any applicable laws, rules or regulations; or (f) personal injury, death, or real or personal property damage arising from your acts or omissions, except to the extent arising directly from our proven willful misconduct in each of the clauses (a)-(f) above.  VectorCare reserves the right, at its 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 VectorCare in asserting any available defenses. 

7.2            You also acknowledge we do not control Organizational Platform Participants and hereby release us from any claim, cause of action or liability of every kind and nature, known and unknown, arising out of or in any way connected with the acts or omissions of such Organizational Platform Participants or your decisions relating to them, including for payment of amounts owed by them to you or their decision to not hire or engage you, unless arising from our proven willful misconduct;  if you are a California resident, you hereby waive California Civil Code 1542, which says: “A general release does not extend to claims which the creditor does not now or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor;”  if you are a resident of another state with a similar law, you hereby make a similar waiver.

  1. No Warranty; Disclaimers and Limitations of Liability.

8.1            THE SERVICES, PLATFORM AND VECTORCARE MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS, AND WE EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

8.2            IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, SAVINGS OR PROFITS, WHETHER OR NOT VECTORCARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL INJURY, DEATH OR TANGIBLE PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES (UNLESS SUCH PERSONAL INJURY, DEATH OR TANGIBLE PROPERTY DAMAGE AROSE SOLELY FROM VECTORCARE’S WILLFUL MISCONDUCT).  UNDER NO CIRCUMSTANCES WILL VECTORCARE BE LIABLE TO YOU OR ANYONE ELSE FOR MORE THAN THE AMOUNT RECEIVED BY VECTORCARE FROM YOUR USE OF THE SERVICES DURING THE PRIOR 6 MONTHS FROM WHEN THE LAST CLAIM AROSE.  IF YOU HAVE NOT PAID VECTORCARE ANY AMOUNTS DURING SUCH PERIOD,  VECTORCARE’S LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50 USD).

  1. Term, Termination, Investigations and Violations.

9.1            This Agreement commences on the date when you accept (as described in the preamble above) and will terminate when you or we decide to terminate.  Notwithstanding the foregoing, if you use Services prior to the date you accepted, you hereby acknowledge and agree that this Agreement commences on the date you first used the Services (whichever is earlier). Unless expressly provided otherwise in Supplemental Terms, this Agreement will remain in full force and effect on a month to month basis while you use the Services or until terminated as described below.

9.2            You may terminate by cancelling the Services through the Platform’s cancellation functionality or by providing us notice of cancellation pursuant to this Agreement.  You will not receive a refund of amounts paid if you cancel or terminate, unless expressly provided otherwise in this Agreement.  If you have any dispute with us arising out of or relating to this Agreement, you agree to notify us in writing with a brief, written description of the dispute and your contact information, and we will have thirty (30) days from the date of receipt within which to attempt resolve the dispute to your reasonable satisfaction. If you and us are unable to resolve the dispute through good faith negotiations over such thirty (30) day period under this informal process, either party may pursue resolution of the dispute in accordance with the Arbitration Agreement below in Section 10.4. 

9.3            We may suspend, cancel or terminate this Agreement and/or any or all applicable Services at any time for any or no reason.  If we become aware of any possible violations or breaches by you or in connection with your account or usage of the Services or your relationship with Organizational Platform Participants, we reserve the right to investigate.  If, as a result of the investigation, we believe that criminal, dangerous, risky, or other inappropriate activity has occurred or may have occurred, we reserve the right to refer the matter to, and to cooperate with, any and all applicable legal authorities and/or suspend and/or terminate your access or rights. 

9.4            Upon termination or cancellation of any Services, your right to use such Services will automatically terminate and you will pay all amounts, if any, owed to us.  You understand that any termination of Services may involve deletion of Your Content relating to the Services.  VectorCare will not have any liability whatsoever to you for any suspension, cancellation or termination.  We will reasonably make available to you an opportunity to retrieve Your Content in our possession or control for up to thirty (30) days after cancellation or termination if you have paid us all amounts due, if any, for the Services.  All provisions of this Agreement which by their nature should survive, shall survive any expiration, cancellation or termination, including ownership provisions, warranty disclaimers, indemnification, limitations of liability, dispute resolution and arbitration agreements, and other applicable provisions.

  1. Miscellaneous.

10.1         Any notices provided by us under this Agreement may be delivered to you within the Services or to the  email address(es) we have on file for your account. You hereby consent to receive notice from us through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day. Except as otherwise specified in the Agreement, any notices to us under this Agreement must be delivered to hello@VectorCare.com, and, if related to legal obligations, rights or remedies to VectorCare, Inc., Attention CEO, at 28 Liberty Ship Way Sausalito, CA 94965, with a copy to the attention of the Legal Department at the same address.

10.2         This 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.  We may assign in connection with a merger, acquisition, reorganization or sale of all or substantially all of our assets or stock without your consent.

10.3         If you have any dispute with us arising out of or relating to the Agreement, you agree to notify us in writing with a brief, written description of the dispute and your contact information, and we will have thirty (30) days from the date of receipt within which to attempt resolve the dispute. If the parties are unable to resolve the dispute through good faith negotiations over such thirty (30) day period under this informal process, either party may pursue resolution of the dispute in accordance with the Arbitration Agreement below.

10.4         Arbitration Agreement: You agree that any dispute or claim relating in any way to your access or use of the Services or to any aspect of your relationship with us, 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 us 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).  This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before or after date of this Agreement or any prior version of this Agreement.  

IF YOU AGREE TO ARBITRATION WITH US, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST US ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF.  INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST US IN AN INDIVIDUAL ARBITRATION PROCEEDING.  IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.  YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.

 

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 the address noted in Section 10.1.  The arbitration will be conducted by JAMS, an established alternative dispute resolution provider.   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, we will select an alternative arbitral forum.  If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, we will pay them for you.  In addition, we will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.  Likewise, we 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.

 

The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable.  The arbitration will decide the rights and liabilities, if any, of you and us. 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. 

 

YOU AND US EACH WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.  You and us are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as otherwise specified above.  An arbitrator can award on an individual basis the same damages and relief as a court and must follow this 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.  

 

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 INDIVIDUAL, USER, OR ENTITY.  Notwithstanding anything to the contrary herein, (a) representative action for public injunctive relief may be arbitrated on a class basis and (b) in the event that the foregoing sentence is deemed invalid or unenforceable with respect to a particular class or dispute for recovery of damages, neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court in accordance with other provisions of this Agreement.

 

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 our address in Section 10.1, within 30 days after first becoming subject to this Arbitration Agreement.  Your notice must include your name and address, your Platform username (if any), the email address you used to set up your Platform account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement.    If you opt out of this Arbitration Agreement, all other parts of this 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.

 

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. This Arbitration Agreement will survive the termination of your relationship with VectorCare.  Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to us.

 

10.5         These TOU together with the Supplemental Terms constitute the entire agreement and supersede any prior agreements between you and us with respect to the subject matter hereof. This Agreement supersedes and replaces all prior and contemporaneous agreements, proposals or representations, written or oral, between you and us. Notwithstanding anything to the contrary, to the extent you are or become an employee, agent or representative of an Organizational Platform Participant, your access and use of the Services for that Organization is subject to the terms of use and agreement between us and that Organizational Platform Participant.

10.6         No waiver of any provision of by us will be effective unless in writing and signed by our authorized representative. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of is held to be contrary to law, the provision will be modified by the arbitrator or court (as applicable) and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement will remain in effect.

10.7         Neither party will be liable for any failure or delay in performance under the Agreement for causes beyond that party’s reasonable control and occurring without that party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

10.8         You agree to the use of electronic communication in order to enter into agreements and place orders or activate subscription plans, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.

10.9         This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and us (or between us and any third party).

10.10       This Agreement will be governed by and interpreted in accordance with the internal laws of the State of California without regard to conflicts of laws principles. The U.N. Convention on the International Sale of Goods will not apply.