Choose Health Terms of Service
Last modified: March 6, 2022
Welcome to Choose Health. We provide services that give you access to simplified, objective information about how your body functions so that can make more informed decisions and choices about your lifestyle and general wellbeing (the “Choose Health Services”). These Terms of Service are a legally binding agreement (the “Agreement”) between you and Choose Health governing both (A) your access to and use of the Choose Health Website (www.ChooseHealth.io) and Mobile Application (collectively, the Choose Health “Platform”), and (B) any purchase of Choose Health Services.Please note: Section 12 of this Agreement contains an arbitration clause and class action waiver that applies to all disputes with Choose Health. It affects how disputes with Choose Health are resolved. By accepting this Agreement, you agree to be bound by this arbitration clause and class action waiver. Please read it carefully.
1. Choose Health Account
In order to access and use the Choose Health Services, you first need to create an Choose Health Account. To do so, you must have a valid email address, create a password, and provide accurate, current, and complete information. You must be eligible to use the Choose Health Service for which you are registering, a resident of the United States, and at least 18 years of age. You may not register more than 1 Choose Health Account and you may not assign or otherwise transfer your Account to anyone else.
You are responsible for maintaining the accuracy, confidentiality, and security of your Account credentials and may not disclose your credentials to anyone else. You must immediately notify Choose Health if you know or have any reason to suspect that your credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorized use of your Choose Health Account. You are responsible for the activity on your Choose Health Account. Your Choose Health Account may be suspended or terminated if someone else uses it to engage in activity that violates this Agreement. You may cancel your Choose Health Account at any time. Contact Choose Health’s Customer Service Department at Info@ChooseHealth.io to cancel your Choose Health Account.
Through the Choose Health Services, you may purchase at-home testing kits (the “Test Kit”) with which you can collect biological samples (i.e. blood, saliva, or urine) that you will then mail to one of Choose Health’s designated accredited testing laboratory partners (“Accredited Lab”). The Accredited Lab will test for the biomarkers that you have selected and purchased (including Cholesterol, Inflammation, and Glucose Levels). The results of your Test Kit(s) will be made available to you through our Platform, including your secure health portal, where you will also receive helpful insights on your general well being.Laboratory Testing Services
The Platform enables you to purchase laboratory testing Services (" Test Services
"), as well as access to Test Services you may have purchased or received at a physical or other online location. Except as expressly indicated in the Test Services description information or packaging materials, all Test Services are intended for wellness monitoring, informational and educational use, and are not intended to diagnose or treat disease. Carefully review this Section and description page for any Test Services you select prior to purchasing your Test Services.Ordering Test Services
In order to access Test Services purchased on the Platform or at a retail or other online location, you must set up an Account and may be required to submit additional information to deliver collection kits to you and potentially determine whether you satisfy applicable Eligibility Criteria. In order for the Lab to process your request for Test Services, you must submit applicable information necessary to enable a Practitioner (" Reviewing Practitioner
") to assess whether the Test Service is appropriate for you. Test Services will not be provided to you if the Reviewing Practitioner does not authorize your request and order the applicable Test Services. In the event that a Reviewing Practitioner does not ultimately authorize a Test Service, we will refund the applicable fees you paid in respect of said Test Services.Submitting Samples using Collection Kits
Our at-home Test Services require you to access the collection kit (" Collection Kit") that you purchased on the Platform or at a retail or other online location. Please read carefully all of the notices and instructions(" Instructions") included in the Collection Kit. You must then (a) collect all biological samples (e.g.
, blood, saliva, or urine," Samples") in accordance with the Instructions, and (b) send the Sample(s) directly to the Lab set forth in the Instructions or otherwise indicated on the Platform. If you do not provide an adequate Sample or utilize the Collection Kit, or provide it in a manner that is contraindicated or not consistent with any Instructions, or do not return the Sample within the time frame set forth in the Instructions, the Lab may not be able to process your Sample or such action may result in inaccurate and unreliable readings of the Sample. In the event the Lab determines that a Sample is not suitable for testing due to the content of the Sample or because the Sample may have been submitted in contravention of the Instructions or these Terms and Conditions, we and the Lab reserve the right to withhold the Test Results (defined below)and to not provide a refund.
By sending us a Sample, you are thereby (a) consenting to undergo the related Test Services, (b) and re-affirming to be bound by these Terms and Conditions and Additional Terms and Conditions, (c) representing and warranting that you have read all relevant Instructions and packaging materials provided with the Collection Kit, and authorizing us to transmit your personal information to the Reviewing Practitioner, the Lab, other health providers you identify, as described in these Terms and Conditions. If you are unsure or if you require any further information, you agree to contact us or a licensed healthcare professional for further information.
Certain test may not be available to you depending on where you live. In addition, you may need to obtain and submit written authorization from your licensed physician to request certain tests from Choose Health.Test Results
If your Sample is successfully processed by the relevant Lab, the results of the Test Services (" Test Results") will be made available to the Reviewing Practitioner, who will release the Test Results to us, who will make them available to you in your Account on the Platform. Except as expressly indicated in the Test Service's packaging or Platform description information, all Test Services are intended for informational, educational and wellness purposes only. Accordingly, whether or not the Lab performing the Test Services indicates in the Test Results that said results are "positive,""reactive," "detected," "elevated" or any other indication, the Test Results are not intended to diagnose or treat a disease or condition. Furthermore, due to the nature of the Test Services, neither we nor the Lab warrant that the Test Results will be entirely or 100% accurate. Inaccuracies can arise from a number of factors. For example, if you have a "positive,""reactive," "detected," or "elevated" Test Result, or have concerns about your Test Results, you will need a further confirmatory diagnostic test.
If you require any further information, you agree to contact us or a licensed healthcare professional for further information.Clinician Oversight
In order for a Lab to process your request for Test Services, you must submit applicable information necessary to enable the Reviewing Practitioner to assess whether the Test Services are appropriate for you, and will review the Test Results if and when furnished by the Lab. You understand and agree that as to certain Tests offered through the Platform you do not necessarily establish a provider-patient relationship with the Reviewing Provider simply as a result of your purchase or use of the Test Services. If you receive a laboratory test result with a value that is outside the normal range, as determined by the Lab performing the Test Services (an " Abnormal Result"), the care coordination team may leave you a voicemail to the number you indicated in your Account profile, but such communication will not include your Test Results in any voicemail message. An educational or other consult may also be available upon request with a Practitioner to discuss the Test Results. Except as set forth in these terms, the Practitioner will neither initiate treatment nor prescribe any medication or device, but rather will direct you to follow-up with your regular healthcare practitioner or primary care physician. If you receive an Abnormal Result and have not connected with the coordination team, you should not delay following up with your personal physician.
As may be indicated in their accompanying product description or packaging materials, certain Test Services (" Treatment-Eligible Test Services"), or direct telehealth consults, include the cost of you receiving a telehealth consult from a third-party licensed Practitioner (a" Telehealth Consult") through the use of synchronous and asynchronous telecommunication technologies. Payment Terms for Test Services and Associated Clinical Oversight and Telehealth Consults
We collect payment for the Test Services on behalf of the Labs, and for the related Clinician Oversight and Telehealth Consults on behalf of Practices, as their respective collection agents. You will be notified of the fees for such services on the Platform, but the fees for all said Services will be included, as possible, in a single charge at the time you purchase the Test Services (the" Aggregate Fee
"). The Test Services and related Clinician Oversight and Telehealth Consults are paid for by you and are not intended to be reimbursed by any health plan. Neither we, the Lab nor a Practice or Practitioner submits or processes insurance paperwork or claims for any of these services. You may request that we, Lab or Practice provide you with a detailed accounting of the Services provided to you. This information may enable you to obtain reimbursement for some of your out-of-pocket expenses from your health insurer or heath saving account program. However, the terms and conditions of coverage for Test Services,Clinician Oversight and Telehealth Consults vary by plan, and some or none of these Services may be eligible for coverage or expense reimbursement. By purchasing these Services, you understand and agree that you are the sole party responsible for paying all fees associated with them. NEITHER THE CHOOSE HEALTH SERVICES NOR THE CHOOSE HEALTH PLATFORM PROVIDE MEDICAL ADVICE.Health and Wellness Information; Not Healthcare or Medical Advice
The information and content provided, including but not limited to text, graphics, images, videos, and other material contained in the Services and on the Platform, are for informational purposes only and are not intended as a substitute for professional medical advice, help, diagnosis or treatment. Always seek the advice of your physician or other qualified healthcare provider with any questions you have regarding your medical care, and never disregard professional medical advice or delay seeking it because of something you have read on or via our Platform. Nothing contained in the Services or on the Platform is intended to constitute a medical diagnosis or treatment. Reliance on any information appearing in the Services or on the Platform, including but not limited to information provided by Choose Health or by other users of the Services, is solely at your own risk. By accepting this Agreement, you understand and agree that your results are not intended to be used for any diagnostic purposes and are not a substitute for professional medical advice.
3. Purchases of Choose Health Services
You may only purchase Choose Health Services if you are a legal resident of the United States, are at least 18 years of age, and have a Choose Health Account. Choose Health reserves the right to refuse, limit or block any offer to purchase, obtain or otherwise access Choose Health Services for any reason.
A. Payment Process: To pay for Choose Health Service, including Test Kit(s) you'll be asked to select from a list of available payment methods on our Platform.
By submitting an order to Choose Health and providing your payment method information, you acknowledge that:
You are responsible for all purchases of Choose Health Services made by you or otherwise attributable to your payment method, except unauthorized activity which is not your fault. It's your responsibility to ensure the accuracy of your order history and to save a copy of your history for your records. If you have questions regarding your transaction history, please contact Customer Support at Info@ChooseHealth.io.
If you purchase a recurring subscription from Choose Health , you authorize Choose Health to automatically charge the subscription Purchase Price: at the beginning of your subscription purchase, upon expiration of any applicable trial offer (see below), or at a date otherwise indicated by us, and on each renewal date thereafter without any additional action by you. If your payment method expires, your card provider may provide us with updated card details in order to help prevent any interruption to your subscription. If you would prefer to opt out from this service, you may do so directly with your bank.
Your subscription will continue to automatically renew until you cancel your subscription. You may cancel your subscription at any time by following the instructions specified on our Platform, or by contacting Customer Support at Info@ChooseHealth.io. You will be able to continue to access and use your subscription service until the end of the subscription period.
We reserve the right to change the Purchase Price of a recurring subscription at any time. If we do so, we will provide you notice at least 30 days in advance. By continuing to use the recurring subscription, you indicate that you accept the new Purchase Price which will then be charged on a recurring basis.
Choose Health may offer a free trial for certain subscriptions. If you sign-up for a free trial subscription, unless otherwise indicated, Choose Health will begin to charge the applicable subscription Purchase Price when the free trial expires. You must cancel your subscription prior to the end of the free trial period to avoid charges to your payment method.
C. Offer and Acceptance: Your order is an offer to purchase Choose Health Services at the Purchase Price (as defined in Section 3D below) and terms shown, and subject to this Agreement. All orders submitted by you are subject to acceptance by us, which we may refuse without providing reasons and with no liability to you. Most offers are accepted and processed by Choose Health within 24 hours, though in some cases Choose Health may take up to 72 hours to process your offer. If your offer is accepted by Choose Health, we will charge your payment method, and send you a purchase confirmation email. If we do not confirm acceptance of your order within ten (10) working days, it is deemed to have been refused.
You may cancel at any time before we have sent you our confirmation email, by contacting customer service at Info@ChooseHealth.io. Following cancellation, we will provide you with a refund for the amount paid to us under the cancelled order.
D. Pricing and Tax
When you purchase Choose Health Services, the price payable is the price indicated on our Platform at the time your order is placed and will be sent out in the confirmation email. Choose Health may change prices at any time without notice. Price increases will only apply to orders placed after such changes.
Choose Health charges sales tax where required by law and the appropriate charges will be added to and displayed in your order. You agree to pay all fees specified plus all applicable sales tax that Choose Health assesses on your purchase (the "Purchase Price"). The Purchase Price does not include charges for shipping and handling. Separate charges for shipping and handling will be itemized on your order.
E. Refunds and Cancellations
Before your order has shipped (1 to 2 business days), you may cancel your purchase of a Test Kit and receive a full refund. Once your Test Kit is shipped, it may be returned to Choose Health within 30 days of delivery, if:
the Test Kit is in its original packaging; the Test Kit has not been used; tags or seals have not been removed from the Test Kit; the Test Kit has not been damaged; or you have the receipt or proof of purchase
Test Kit not meeting these criteria will not be considered for return. A $15 processing fee will be deducted from any refund owed to you and you are responsible for the cost of shipping all Test Kit eligible for a return.
You must notify us of your desire to return your Test Kit within this 21 day period and must send back your Test Kit immediately after, but no later than 14 days from the date on which you inform us of your intent to return your test kit. Please contact Customer Service at Info@ChooseHealth.io to request a return.
F. License of Services
The Choose Health Services are licensed to you, not sold. Choose Health grants you a personal, limited, non-transferable, revocable and non-exclusive license to use the Choose Health Services to which you have access for your non-commercial use, subject to your compliance with this Agreement, the Consent for Services and HIPAA Authorization
, and other applicable terms. You may not access, copy, modify or distribute any Choose Health Service, unless expressly authorized by Choose Health or permitted by law. You may not reverse engineer or attempt to extract or otherwise use source code or other data from Choose Health Services, unless expressly authorized by Choose Health or permitted by law. Choose Health or its licensors own and reserve all other Intellectual Property Rights (as discussed below in Section 5).
4. Availability of Choose Health Services and the Choose Health Platform
We do not guarantee that any Choose Health Services or the Choose Health Platform will be available at all times, in all locations, or at any given time or that we will continue to offer certain Choose Health Services or Platform features, including Platform Content (defined below) for any particular length of time. From time to time, Choose Health may update, change or modify Choose Health Services or Platform features without notice to you. These updates and modifications may be required in order to continue to use the Choose Health Services or Choose Health Platform.
5. Use of the Choose Health Platform
Choose Health Platform content includes software technology, text, forum or chat posts, messages, links, emails, music, sound, graphics, pictures, video, logos, icons, trademarks, code and all audio visual or other material appearing on the Choose Health Platform, as well as the design and apprentice of our Website and Mobile Application (collectively, “Choose Health Platform Content”). Choose Health Platform Content also includes user-generated Content (“UGC”). UGC includes forum or chat posts, reviews, unsolicited product ideas, profile content and other content contributed by users of the Choose Health Platform. Note, however, that UGC does not
include the Protected Health Information (“PHI”) that users submit to Choose Health on the Platform or via our Services, including by submitting completed Test Kits to our Accredited Lab partners. Each user’s PHI will only be available to that specific user through her or his secure Account and Secure Health Portal.
All Choose Health Platform Content is either owned by Choose Health or its licensors or is licensed to Choose Health and its licensors pursuant to Section 5 below.
The Choose Health Platform may include hyperlinks to third party websites. Those sites may collect data or solicit personal information from you. Choose Health does not control those sites and is not responsible for their content or for their collection, use or disclosure of personal information.
A. Your UGC
You are responsible for your UGC. You may not upload UGC that infringes a third party's intellectual property rights or that violates the law, this Agreement, other applicable Choose Health terms, or a third party's right of privacy or right of publicity.
Choose Health may, in its sole discretion, remove, edit or disable UGC for any reason, including if Choose Health reasonably determines that Choose Health violates this Agreement. Choose Health does not assume any responsibility or liability for Choose Health, for removing it, or not removing it or other Platform Content. Choose Health does not pre-screen all UGC and does not endorse or approve any UGC available on the Choose Health Platform or Choose Health advertising and marketing.
When you contribute UGC, you grant to Choose Health, its licensors and licensees a non-exclusive, perpetual, transferable, worldwide, sublicensable license to use, host, store, reproduce, modify, create derivative works, publicly perform, publicly display or otherwise transmit and communicate the UGC, or any portion thereof, in any manner or form and in any medium or forum, whether now known or hereafter devised, without notice, payment or attribution of any kind to you or any third party. you also grant all other users who can access and use your UGC on the Choose Health Platform the right to use, copy, modify, display, perform, create derivative works from, and otherwise communicate and distribute your UGC on or through the Choose Health Platform without further notice, attribution or compensation to you.
B. Rules of Conduct
When you access or use the Choose Health Platform and Choose Health Services, you agree that you will not:
violate any law, rule or regulation;impersonate another person or falsely imply that you are a Choose Health employee or representative;attempt to obtain, or phish for, a password, account information, or other private information from anyone else on the Choose Health Platform;perform research studies, verify performance of samples, or perform tests of collected samples, without the explicit written consent of Choose Health;collect or use personal information about users or third parties without their consent;collect or store any information about other users or members, other than in the normal course of using the Platform for facilitating voluntary communication among users;modify, translate, adapt or otherwise create derivative works or improvements, of the Choose Health Platform or any content or source code;reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Choose Health Platform or any part thereof;rent, lease, lend, sell, sublicense, assign, distribute, publish, publicly perform or display, transfer or otherwise make available the Choose Health Platform or any features or functionality of the Platform, to any third party for any reason, including by making the Platform available on a network where it is capable of being accessed by more than one device at any time;remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Platform; sublicense or transfer any of your rights under this Agreement or otherwise use the Services for the benefit of a third party, create or access member’s user accounts using any automated means or under false pretenses;frame or mirror the Site or reformat it in any way or use deep links;introduce any keystroke logging or any other monitoring code into the Platform;interfere with or disrupt the Choose Health Platform or Services, or the software and networks used to support or provide the Choose Health Platform or Services, including any hacking or cracking into the Choose Health Platform or a Service;use any robot, spider or other automated device or process to access the Choose Health Platform for any purpose or copy any material on the Choose Health Platform;use any software or program that damages, interferes with or disrupts the Choose Health Platform or another's computer or property, such as denial of service attacks, spamming, hacking, or uploading computer viruses, worms, Trojan horses, cancelbots, spyware, corrupted files and time bombs;contribute UGC that is inappropriate, abusive, harassing, profane, threatening, hateful, offensive, vulgar, obscene, sexually explicit, defamatory, infringing, invades another's privacy, or is otherwise reasonably objectionable.publish, post, upload or distribute UGC or content that is illegal or that you don't have permission to freely distribute;post a message for any purpose other than personal communication, including prohibited messages like advertising, spam, chain letters, pyramid schemes and other types of solicitation or commercial activities;otherwise use the Services or the Platform in any manner that exceeds the scope of the Limited License described in this Agreement; or promote, encourage or take part in any prohibited activity described above.
If you violate these rules and fail to remedy this violation after a warning, Choose Health may take action against you, including revoking access to the Choose Health Platform. In case of severe violations, Choose Health may take these actions without issuing a prior warning. If you encounter someone violating any of these rules, please report this activity to Choose Health Customer Service at hello@ChooseHealth.io.
Choose Health may, in its discretion, monitor or record online activity or UGC on the Choose Health Platform and may remove any UGC from the Choose Health Platform at its discretion. Remember that your UGC on the Choose Health Platform are public and will be seen by others.
6. Proprietary Rights
All Choose Health Services, the Choose Health Platform, and all related intellectual property and trademark rights, including but not limited to copyrights, rights affording equivalent protection to copyright, data, design rights, trademarks, service marks, trade names, business names, trade dress, brand names, logos, domain names, rights to goodwill, and all registrations or applications to register any of the foregoing (“Intellectual Property Rights”) are solely owned by Choose Health.
You acknowledge and agree that (a) you will not do anything to interfere with Choose Health’s Intellectual Property Rights, including but not limited to copying, reproducing, or reverse engineering those Intellectual Property Rights; (b) not make any claim to any right, title or interest in or to the Choose Health Services or Choose Health Platform, including any Intellectual Property Rights; (c) not use Choose Health’s Intellectual Property Rights, including Choose Health’s name, logo, or trademarks in any of your advertising, communications, publications or other work without the prior written permission of Choose Health; and (d) you will not remove, obfuscate, deface, cover or alter any Choose Health mark.
This Agreement is effective until terminated by you or Choose Health. Choose Health may terminate your access and use of any Choose Health Services or your Choose Health Account if Choose Health determines that you have violated this Agreement or that there has been otherwise unlawful, improper or fraudulent use of Choose Health Services associated with your Choose Health Account. When practical, Choose Health will notify you of the termination. If your Choose Health Account is terminated, you will not have access to your Choose Health Account or Services and may be barred from accessing or using any Choose Health Service again. Upon termination, your license under this Agreement will also terminate.
Instead of termination and prior to any termination, Choose Health may issue you a warning, suspend or alter your access to a particular Choose Health Service or your Choose Health Account. If Choose Health takes any action described in this Section, you will not be entitled to a refund.
Choose Health may terminate any Choose Health Service at any time by giving at least thirty days' notice either via email (if available), within the affected Choose Health Service, or on the service updates page of Choose Health Platform. If you believe that any action has been taken against your Account in error, please contact Customer Support at info@ChooseHealth.io.
Sections UGC License, Proprietary Rights, Termination, Warranties and Limitations of Liability, Indemnification, General Terms, Changes to this Agreement and Arbitration Agreement of this Agreement survive termination of this Agreement.
8. Reservation of Rights
Choose Health reserves the right to take all legal and technical steps available to enforce this Agreement. No delay, omission or failure to exercise any of its rights or remedies under this Agreement will be deemed to be a waiver thereof.
9. Warranties and Limitation of LiabilityTHE CHOOSE HEALTH PLATFORM AND CHOOSE HEALTH SERVICES ARE LICENSED AND PROVIDED "AS IS." YOU USE THEM AT YOUR OWN RISK. TO THE FULL EXTENT PERMITTED UNDER APPLICABLE LAW, CHOOSE HEALTH GIVES NO EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ANY STATUTORY WARRANTY ON HIDDEN DEFECTS, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR PRACTICE. WITHOUT LIMITING THE FOREGOING, CHOOSE HEALTH DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF A CHOOSE HEALTH SERVICE OR PLATFORM; THAT THE CHOOSE HEALTH SERVICE OR PLATFORM WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE CHOOSE HEALTH SERVICE OR PLATFORM WILL BE UNINTERRUPTED OR FREE FROM ERRORS, BUGS, CORRUPTION, LOSS, INTERFERENCE, HACKING OR VIRUSES, OR THAT CHOOSE HEALTH SERVICES OR PLATFORM WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER SOFTWARE. CHOOSE HEALTH DOES NOT WARRANT OR GUARANTEE ANY THIRD PARTY PRODUCT OR SERVICE OFFERED VIA THE CHOOSE HEALTH PLATFORM OR SERVICES.TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, CHOOSE HEALTH AND ITS EMPLOYEES, LICENSORS AND BUSINESS PARTNERS SHALL NOT BE LIABLE TO YOU FOR ANY LOSSES THAT WERE NOT CAUSED BY CHOOSE HEALTH’S BREACH OF THIS AGREEMENT, OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES. THE TYPES OF EXCLUDED DAMAGES INCLUDE, FOR EXAMPLE, FINANCIAL LOSS (SUCH AS LOSS INCOME OR PROFITS), COST OF SUBSTITUTE GOODS OR SERVICES, BUSINESS INTERRUPTION OR STOPPAGE, LOSS OF DATA, LOSS OF GOODWILL, AND COMPUTER FAILURE OR MALFUNCTION. THIS LIMITATION APPLIES TO ANY CLAIM ARISING OUT OF OR RELATED TO THE LICENSE GRANTED IN THIS AGREEMENT, THE CHOOSE HEALTH SERVICES, AND THE CHOOSE HEALTH PLATFORM, WHETHER BASED IN CONTRACT, TORT, STATUTE, STRICT LIABILITY OR OTHERWISE. IT ALSO APPLIES EVEN IF CHOOSE HEALTH KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGE. YOU MAY RECOVER ONLY DIRECT DAMAGES IN ANY AMOUNT NO GREATER THAN WHAT YOU ACTUALLY PAID FOR THE APPLICABLE CHOOSE HEALTH SERVICE. CHOOSE HEALTH DOES NOT LIMIT ITS LIABILITY FOR FRAUD, GROSS NEGLIGENCE, WILFUL MISCONDUCT, OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY LAW. THE REMEDIES SET FORTH IN THIS AGREEMENT WILL BE YOUR SOLE AND EXCLUSIVE REMEDIES FOR ANY CLAIM AGAINST CHOOSE HEALTH UNDER OR RELATED TO THIS AGREEMENT.IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. IF YOU ARE A RESIDENT OF A STATE WITH PROTECTIONS SIMILAR TO CALIFORNIA CIVIL CODE §1542, YOU HEREBY WAIVE SUCH PROVISIONS OR PROTECTIONS.
Governing Law This Agreement is between you and Choose Health, LLC, 500 W 5th Street, Suite 1105, Austin TX 78701, and the laws of the State of Texas, excluding its conflicts-of-law rules, govern this Agreement and your use of the Choose Health Platform and Services. You expressly agree that for claims and disputes not subject to the arbitration agreement below, exclusive jurisdiction for any claim or action arising out of or relating to this Agreement or Choose Health Services or Platform shall be the federal or state courts that govern Travis County, Texas, and you expressly consent to the exercise of personal jurisdiction of such courts.
Electronic Contracting With regard to your purchases of Choose Health Services on the Choose Health Platform, we will communicate electronically by sending email or posting electronically. You agree that all agreements, notices, disclosures and other communications that are provided electronically satisfy any legal requirement that such communications be in writing.
10. Changes to this Agreement
Choose Health may modify this Agreement from time to time, so please review it frequently. Any revisions to the Terms Of Service will be applicable to orders placed on the Choose Health Platform on or after the Last Updated date stated by Choose Health at the top of this Agreement. Once you accept a version of the Agreement, we will not enforce future material changes without your express agreement to them.
12. Dispute Resolution and Arbitration Agreement
A. Application: This Dispute Resolution and Arbitration Agreement applies to all access, use and purchases of the Choose Health Platform or Choose Health Services.
B. Overview of Dispute Resolution Process: Choose Health is committed to participating in a cordial dispute resolution process. To that end, this Agreement provides for a two-part process for individuals to whom this Section applies: (1) an informal negotiation directly with Choose Health’s customer service team, and (2) a binding arbitration administered by the American Arbitration Association (“AAA”) using its specially designed Consumer Arbitration Rules (as modified by this Section and except as provided in Section 12.E).
C. Pre-Arbitration Dispute Resolution and Notification: Prior to initiating an arbitration, you and Choose Health each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. We will contact you at the email address you have provided to us; you can contact Choose Health’s customer service team by emailing us. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.
D. Agreement to Arbitrate: You and Choose Health mutually agree that any dispute, claim or controversy arising out of or relating to your access, use, or purchase of Choose Health Services or the Choose Health Platform, this Agreement, or the breach, termination, enforcement or interpretation thereof (collectively, “Disputes”) will be settled by binding arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and Choose Health agree that the arbitrator will decide that issue.
E. Exceptions to Arbitration Agreement: You and Choose Health each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other Intellectual Property Rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
F Arbitration Rules and Governing Law: This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules and/or other AAA arbitration rules determined to be applicable by the AAA (the “AAA Rules“) then in effect, except as modified here. The AAA Rules are available at www.adr.org or by calling the AAA at 1–800–778–7879.
G. Modification to AAA Rules - Arbitration Hearing/Location: In order to make the arbitration most convenient to you, Choose Health agrees that any required arbitration hearing may be conducted, at your option, (a) if you reside in the United States, in the county where you reside; (b) in Travis County, Texas; (c) in any other location to which you and Choose Health both agree; (d) via phone or video conference; or (e) for any claim or counterclaim under $25,000, by solely the submission of documents to the arbitrator.
H. Arbitrator’s Decision: The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.I. Jury Trial Waiver: You and Choose Health acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.J. No Class Actions or Representative Proceedings: You and Choose Health acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding as to all Disputes. Further, unless you and Choose Health both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding.
K. Severability: In the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
L. Changes: Notwithstanding the provisions of Section 11 (“Changes to this Agreement”), if Choose Health changes this Section 12 (“Dispute Resolution and Arbitration Agreement”) after the date you last accepted the Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by sending us written notice (including by email) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Choose Health in accordance with the provisions of the “Dispute Resolution and Arbitration Agreement” section as of the date you last accepted this Agreement (or accepted any subsequent changes to this Agreement).
K. Survival: This Section 12 will survive any termination of this Agreement.