Proclaim Connect Platform Terms of Use

These Proclaim Connect Platform Terms of Use ("Platform Terms") are agreed to by Fresh Health, Inc., on behalf of its subsidiaries and divisions (collectively, "Fresh") and you, or if you represent an entity or other organization, that entity or organization (in either case, "you").

THESE PLATFORM TERMS CONTAIN A MANDATORY DISPUTE RESOLUTION PROVISION AND BINDING ARBITRATION AGREEMENT WITH A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS. THE ARBITRATION AGREEMENT REQUIRES THAT DISPUTES BE RESOLVED IN INDIVIDUAL ARBITRATION OR SMALL CLAIMS COURT PROCEEDINGS. IN ARBITRATION, THERE IS NO JUDGE OR JURY AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT. PLEASE REVIEW CAREFULLY.

Fresh offers end users ("Users") the ability to access information, data, and other content ("Fresh Materials"), as well as utilize Fresh's cloud-based tool, inclusive of all functionalities, application programming interface and tools, including the ability to upload Content (as defined hereafter) and other services (collectively, "Services") available through Fresh's online platform, Proclaim Connect (the "Platform").

You may access the Platform through the website located at www.connect.proclaimhealth.com, and any other websites operated by Fresh or its subsidiaries and divisions (each, a "Site") or other portals or applications provided by and on behalf of Fresh or its subsidiaries and divisions (each, an "Application," and each Site and Application treated as a part of the "Platform" for purposes of these Platform Terms). These Platform Terms apply to your use of and access to the Platform and the Fresh Materials and Services available through the Platform.

These Platform Terms include the terms and conditions below and the Privacy Policy, located at https://proclaimhealth.com/policies/privacy-policy ("Privacy Policy"). You are responsible for compliance with these Platform Terms (including the Privacy Policy).

Unless you have entered into any other executed agreements with Fresh regarding the Platform or any Fresh Materials or Services or which otherwise expressly reference these Platform Terms (an "Executed Agreement"), these Platform Terms are the complete and exclusive agreement between you and Fresh regarding your access to and use of the Platform and all Fresh Materials and Services. Other than the Executed Agreement (if applicable), these Platform Terms supersedes any prior agreement or other communications between you and Fresh relating to your use of and access to the Platform and any Fresh Materials or Services. If you have an Executed Agreement with Fresh, these Platform Terms are intended to supplement and work in conjunction with the Executed Agreement; however, to the extent there is any express and direct conflict between these Platform Terms and the Executed Agreement, your Executed Agreement shall control to the extent of such conflict.

PLEASE CAREFULLY READ THESE PLATFORM TERMS. BY ACCESSING OR USING THE PLATFORM OR ANY FRESH MATERIALS OR SERVICES, OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THESE PLATFORM TERMS, OR OTHERWISE BY SIGNING AN AGREEMENT WHICH REFERENCES THESE PLATFORM TERMS, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THESE PLATFORM TERMS.

IF YOU DO NOT AGREE TO THESE PLATFORM TERMS, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THESE PLATFORM TERMS, FRESH IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE PLATFORM OR ANY FRESH MATERIALS OR SERVICES ACCESSIBLE THROUGH THE PLATFORM AND YOU MUST NOT ACCESS OR USE THE PLATFORM OR ANY FRESH MATERIALS OR SERVICES. IF YOU ACCESS OR USE THE PLATFORM OR ANY FRESH MATERIALS OR SERVICES, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THESE PLATFORM TERMS AND AGREE TO BE BOUND BY THESE PLATFORM TERMS.

1. DEFINITIONS. Terms used in these Platform Terms have the definitions given in these Platform Terms or, if not defined in these Platform Terms, have their plain English meaning as commonly interpreted in the United States, even if Fresh provides a translated version of these Platform Terms. To the extent any ambiguity or inconsistency exists between the English version of these Platform Terms and a version in any other language, the English (as interpreted in the United States) version of the Platform Terms controls.
2. TERM. These Platform Terms are entered into as of the earlier of the date you first access or use the Platform or any Fresh Materials or Services (the "Effective Date") and will continue until terminated as set forth herein.
3. MODIFICATIONS. Occasionally Fresh may make changes to these Platform Terms for valid reasons, such as adding new functions or features to the Platform or Service, technical adjustments, typos or error fixing, for legal or regulatory reasons or for any other reasons as Fresh deems necessary, in its sole discretion. When Fresh makes material changes to these Platform Terms, Fresh will provide you with notice as appropriate under the circumstances, e.g., by displaying a prominent notice within the Platform or by sending Users an email. You may terminate these Platform Terms as set forth below if you object to any such modifications. However, you will be deemed to have agreed to any and all modifications through your continued use of the Platform or any Fresh Materials or Services following such notice period.
4. ACCOUNT.
   1. Users. You are permitted to access certain Fresh Materials and Services without establishing a user account on the Platform, provided that you have agreed to these Platform Terms. However, access to and use of certain Fresh Materials and Services may require that you establish a user account (an "Account") on the Platform. Approval of your request to establish an Account will be at the sole discretion of Fresh. If you are an organization, you may authorize designated employees within your organization to use and access the Platform, Fresh Materials, and Services on your behalf through your Account (you and each such individual, as applicable, a "User" of your Account). If you are an individual, then you may use and access the Platform, Fresh Materials, and Services through your Account as the sole User of the Account. Each user identification and password for your Account (each, "Account ID") is personal in nature and may be used only by you or, as applicable, the User to whom the Account ID is issued.
   2. Registration Information. In connection with establishing an Account, you will be asked to submit certain information about yourself and, as applicable, your organization ("Registration Information"). You agree that: (a) all such information you provide will be accurate, complete, and current; (b) you will maintain and promptly update all such information to keep it accurate, complete, and current; and (c) you will not provide any information belonging to another person or organization with the intent to impersonate that person or organization.
   3. Responsibilities. You are solely responsible for all access to and use of your Account (whether authorized or unauthorized), including all Fresh Materials and Services accessed through your Account. Fresh may deem any actions taken through your Account to have been authorized by you. You are responsible for compliance, and the compliance of any other Users of your Account and with these Platform Terms. You will ensure the security and confidentiality of each Account ID and will notify Fresh immediately if any Account ID is lost, stolen, or otherwise compromised. You acknowledge that you are fully responsible for all costs, fees, liabilities, or damages incurred, and material transferred, stored, modified, or shared through the use of each Account ID (whether lawful or unlawful). You acknowledge that any orders made or other transactions completed or actions taken through your Account will be deemed to have been lawfully completed by you. In no event will Fresh be liable for the foregoing obligations or the failure by you to fulfill such obligations.
      
      
   4. Account Authority. If you are an organization, then the individual who establishes your Account will have control over your Account and shall be the administrator (the "Account Authority"). If you are an individual, then you will be the Account Authority for your Account, unless you designate a different primary Account Authority as specified below. You may designate multiple Account Authorities, and if there are issues between the two or more Account Authorities, the primary Account Authority shall be the owner of the organization. Fresh may deem any User with Account Authority to have full authority for all decisions relating to your Account, including: (a) addition or removal of Users; (b) permissions to access your Account; (c) disputes regarding your Account; (d) notices and other communications relating to your Account; and (e) any other decisions that may be required regarding your Account. There must be at least one Account Authority for each Account at all times. The initial Account Authority must be designated in the initial request to establish an Account. If an initial Account Authority is not designated, the individual requesting to establish an Account shall be deemed the initial Account Authority for that Account. The Account Authority may be changed: (i) by an email sent to Fresh from the registered email address of the current Account Authority; (ii) by bona fide legal written notice provided to Fresh by one of your corporate officers; or (iii) as separately directed and acknowledged by Fresh. It is your responsibility to properly designate a new or additional Account Authority whenever appropriate. In the event of a dispute where multiple persons claim to be the rightful Account Authority, Fresh reserves the right, at its sole discretion, to: (1) suspend all access to your Account until an Account Authority is properly designated to Fresh's sole satisfaction; or (2) terminate your Account and delete your Registration Information.
5. YOUR CONTENT.
   1. Your Content. You are solely responsible for any data, file attachments, text, images, reports, personalinformation, or any other content, that is uploaded or submitted, transmitted or otherwise madeavailable, to or through the Portal by you or any User and is processed by Fresh on your behalf (collectively, "Your Content"). As between you and Fresh, you retain all right, title, interest and control, in and to Your Content, in the form submitted to the Platform. Subject to these Platform Terms, you grant us a worldwide,royalty-free, limited license to access, use, process, copy, distribute, perform, export, and display Your Content, and solely to the extent that reformatting Your Content for display in the Serviceconstitutes a modification or derivative work, the foregoing license also includes the right to makemodifications and derivative works. The aforementioned license is hereby granted solely: (i) to maintainand provide you the Service, including to facilitate sending us images and scans so we can provide oral health systems to the individuals subject of Your Content; (ii) to prevent or address technical or security issues and resolve supportrequests; (iii) to investigate when we have a good faith belief, or have received a complaint alleging, thatYour Content is in violation of these Platform Terms; (iv) to comply with a valid legal subpoena, request,or other lawful process; and (v) as expressly permitted in writing by you or otherwise directed by you in the Platform. Fresh is not responsible or liable for any deletion, correction, destruction, damage, loss or failure to store, restore or back-up any of Your Content. You agree that you have all right, title, interest, and consent in Your Content, including from any third parties, necessary to allow Fresh and its service providers to use Your Content as set forth in these Platform Terms.
      
      
   2. Responsibility for Your Content Compliance. You represent and warrant that: (i) you have or have obtained all rights, licenses, consents, permissions, power and/or authority, necessary to grant the rights granted herein, for any of Your Content that you submit, post or display on or through the Platform; (ii) Your Content is in compliance with these Platform Terms; and (iii) Your Content you submit, your use of same, and Fresh's use of Your Content, as set forth in these Platform Terms, do not and shall not (a) infringe or violate any patents, copyrights, trademarks or other intellectual property, proprietary or privacy, data protection or publicity rights of any third party; (b) violate any applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer and exportation (the "Laws"); (c) violate any of your or third party's policies and terms governing Your Content. Other than Fresh's security and data protection obligations expressly set forth herein, and unless Fresh has specifically agreed otherwise in an Executed Agreement or any other written agreement with you, Fresh assumes no responsibility or liability for Your Content, and you shall be solely responsible for Your Content and the consequences of using, disclosing, storing, or transmitting it.
   3. No Sensitive Data Without Additional Documents. Unless and until you or your organization for which your Account belongs have executed appropriate agreements with Fresh to provide adequate protections for same, you shall not submit to the Portal any data that is protected under a special legislation and requires a unique treatment, including, without limitations, (i) categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any similar legislation or regulation in other jurisdiction, and (ii) any protected health information subject to the Health Insurance Portability and Accountability Act ("HIPAA"), as amended and supplemented, or any similar legislation in other jurisdiction. For the avoidance of doubt, you shall not submit any HIPAA-protected data unless and until you or your organization have separately entered into a HIPAA Business Associate Agreement with Fresh.
6. ACCESS.
   1. To the Platform and Services. Subject to your compliance with these Platform Terms and the Executed Agreement (if applicable), Fresh will permit you to access and use the Platform and Services solely for your own lawful purposes and only in accordance with these Platform Terms and any other agreement you agree to with Fresh before being given access to any specific aspects of the Platform. Any additional agreement is in addition to these Platform Terms and will govern your use of the portions of the Platform to which the additional agreement applies in the event of a conflict between the terms of these Platform Terms and the additional agreement.
   2. To Fresh Materials. Unless otherwise noted on the Platform, all Fresh Materials available through the Platform, including all text, audio, video, photographs, illustrations, graphics, testimonials, and other media, is owned by Fresh, Fresh's third party providers, or by other Users of the Platform. All Fresh Materials are provided for informational purposes only and you are solely responsible for verifying the accuracy, completeness, and applicability of all Fresh Materials and for your use of any Fresh Materials. You will not, and will not permit any third party to: (a) alter, modify, reproduce, or create derivative works of any Fresh Materials; (b) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any Fresh Materials; or (c) alter, obscure or remove any copyright, trademark, or any other notices that are provided on or in connection with any Fresh Materials. Fresh makes no guarantees regarding the accuracy, currency, suitability, or quality of any Fresh Materials. Except as set forth in these Platform Terms, you are granted no licenses or other rights in or to any Fresh Materials, or any IPR therein or related thereto. If you would like to use any Fresh Materials in a manner not permitted by these Platform Terms, please contact Fresh.
   3. To Other Users. The Platform may allow you to link, connect, or otherwise communicate with other Users through the Platform. By linking, connecting, or communicating with other Users, you are agreeing to allow those Users to communicate directly with you through the Platform. You agree that you are solely responsible for all communications between you and any other User through the Platform. Your extension or acceptance of a link, connection, or other communication with another User will serve as your affirmative "opt in" to the disclosure of any of Your Content or other data or information (which may include your personal information or personal information you have uploaded) that you provide to that other User.
      
      
   4. To Third-Party Services. The Platform may provide you with access to certain Services developed, provided, or maintained by other third-party service providers ("Third Party Services"). In addition to the terms of these Platform Terms, your access to and use of any Third Party Services is also subject to any other agreement you may agree to before being given access to the Third Party Services (each, a "Third Party Service Agreement"). The terms of any Third Party Service Agreement (which may include payment of fees) will apply to the applicable Third Party Services provided under that Third Party Service Agreement in addition to the terms of these Platform Terms, but will not apply to any other Services you may access through the Platform. Except as set forth in these Platform Terms, the terms of any Third Party Service Agreement will control in the event of a conflict between the terms of these Platform Terms and that Third Party Service Agreement.
      
      
7. ORDERS AND TERMS OF SALE. You may be permitted to place orders seeking to purchase a products and other offering from Fresh ("Fresh Offering") available for sale on the Platform (whether in the form of an online order submitted through the Platform or an order submitted by way of email, phone, or other form permitted by Fresh, an "Order"). All Orders are subject to acceptance by Fresh, in its sole discretion. In addition to these Platform Terms, your purchase of any Fresh Offering is governed by the terms displayed on the Platform in connection with each Fresh Offering and any additional terms provided to you in connection with your Order or any acceptance of your Order provided by Fresh (the "Terms of Sale"). By placing an Order, you agree to be bound by the Terms of Sale with respect to that Order and any Fresh Offering included in that Order. If these Platform Terms conflicts with the Terms of Sale for any Order, the Terms of Sale will govern and control with respect to the Fresh Offering provided to you under that Order. Risk of loss and title to any Fresh Offering you purchase pass to you upon delivery of such Fresh Offering. If a Fresh Offering is listed at an incorrect price or with incorrect information, Fresh shall have the right to refuse or cancel any Order placed for such Fresh Offering, whether or not the Order has been confirmed or your credit card has been charged. If your credit card has already been charged for an Order and your Order is canceled, Fresh will promptly issue you a credit in the amount of the charge.
8. TERMINATION. You may cease use of the Platform at any time. If you also wish to disable access to your Account and terminate these Platform Terms, you may contact Fresh as indicted on the Platform to request that your Account be disabled. Fresh may terminate these Platform Terms at any time in its sole discretion by disabling access to your Account or by providing notice to you. Upon any termination of these Platform Terms: (1) all rights granted to you under these Platform Terms will terminate; (2) you will immediately cease all use of and access to the Platform and all Fresh Materials and Services; (3) you will cease use of and delete all Fresh Materials you obtained prior to termination; and (4) Fresh may, in its sole discretion, disable your Account and delete any of Your Content, unless otherwise required by Law. Fresh may, in its sole discretion, fulfill any Orders pending at the time of any termination of these Platform Terms or cancel any pending Orders and refund any pre-paid amounts. Sections 1 (Definitions), 5 (Your Content), 7 (Orders and Terms of Sale), 8 (Termination), 9 (Suspension), 10 (Platform Technology), 11 (Ownership), 12 (Fresh Marks), 13 (Representations and Warranties), 14 (Disclaimer), 15 (Indemnity), 16 (Limitation on Liability), 17 (Data Privacy), 18 (Feedback), 19 (Notices), 20 (Linked Sites), 21 (Additional Terms), and 22 (Dispute Resolution) will survive any expiration or termination of these Platform Terms.
9. SUSPENSION. Without limiting Fresh's right to terminate these Platform Terms, Fresh may also suspend your access to your Account, the Platform, any Fresh Materials, or any Services, with or without notice to you, upon any actual, threatened, or suspected breach of these Platform Terms or applicable law or upon any other conduct deemed by Fresh, in its sole discretion, to be inappropriate or detrimental to the Platform, Services, Fresh, or any other User or third party.
10. PLATFORM TECHNOLOGY. The Platform, and the databases, software, hardware and other technology used by or on behalf of Fresh to operate the Platform, and the structure, organization, and underlying data, information, and software code thereof (collectively, the "Technology"), constitute valuable trade secrets of Fresh. You will not, and will not permit any third party to: (1) access or attempt to access the Technology except as expressly provided in these Platform Terms; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden, or impair the Technology; (3) use automated scripts to collect information from or otherwise interact with the Technology; (4) alter, modify, reproduce, create derivative works of the Technology; (5) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any of your rights to access or use the Technology or otherwise make the Technology available to any third party; (6) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (7) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (8) monitor the availability, performance, or functionality of the Technology; (9) interfere with the operation or hosting of the Technology; or (10) introduce any viruses, Trojan horses, worms, logic bombs or other material into the Platform that is harmful to the Platform or Technology.
11. OWNERSHIP. The Technology, all additions, improvements, updates, and modifications thereto, and all intellectual and proprietary property rights, including all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, and rights in data and databases ("IPR"), in and to the Technology are and will remain the sole and exclusive property of Fresh and its third party providers. You receive no ownership interest in or to the Technology and you are not granted any right or license to use the Technology itself, apart from your ability to access the Platform, Fresh Materials, and Services under these Platform Terms.
12. FRESH MARKS. The Fresh name and logo, the Proclaim and Proclaim Health name and logo, and all names and logos displayed on the Platform, through the Services, or in any Fresh Materials, are trademarks or service marks of Fresh and its subsidiaries, divisions, and third party providers. You are granted no right or license to use any such trademarks or service marks. Any use of such trademarks or service marks without Fresh's express written consent is strictly prohibited.
13. REPRESENTATIONS AND WARRANTIES.
    1. Mutual. Each party hereby represents and warrants to the other party that: (a) it has the legal right and authority to enter into these Platform Terms; (b) these Platform Terms form a binding legal obligation on behalf of such party; and (c) it has the legal right and authority to perform its obligations under these Platform Terms and to grant the rights and licenses described in these Platform Terms.
    2. Compliance with Laws; Reasonable Allocation of Risks. You represent and warrant to Fresh that your use of and access to the Platform or any Fresh Materials or Services, will comply with all applicable Laws and will not cause Fresh itself or any other third party to violate any applicable Laws. Fresh is not responsible for notifying you of any such Laws, enabling your compliance with any such Laws, or for your failure to comply with any such Laws. You hereby acknowledge and confirm that the limitations of liability and warranty disclaimers contained in these Platform Terms are agreed upon by you and Fresh and we both find such limitations and allocation of risks to be commercially reasonable and suitable for our engagement hereunder, and both you and Fresh have relied on these limitations and risk allocation in determining whether to enter these Platform Terms.
14. DISCLAIMER. NOTWITHSTANDING ANYTHING IN THESE PLATFORM TERMS OR ELSEWHERE TO THE CONTRARY AND TOTHE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:
    1. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PLATFORM, FRESH MATERIALS, AND THE SERVICE ARE PROVIDED ON AN "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE" BASIS, AND WITHOUT WARRANTIES OF ANY KIND. FRESH AND OUR AFFILIATES, SUBCONTRACTORS, AGENTS AND VENDORS (INCLUDING, ANY THIRD PARTY SERVICE PROVIDERS), HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION, WARRANTIES AND/OR REPRESENTATIONS OF MERCHANTABILITY, FUNCTIONALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY.
    2. FRESH DOES NOT WARRANT, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION THAT THE PLATFORM, FRESH MATERIALS, OR SERVICE, INCLUDING THE ACCESS THERETO AND USE THEREOF, WILL BE UNINTERRUPTED, TIMELY, SECURED, ERROR FREE, THAT DATA (INCLUDING YOUR CONTENT) WON'T BE LOST, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PLATFORM, FRESH MATERIALS AND/OR SERVICE ARE FREE FROM VIRUSES OR OTHER HARMFUL CODE. FRESH FURTHER DISCLAIMS ANY AND ALL LIABILITY OR RESPONSIBILITY FOR ANY DELAYS, FAILURES, INTERCEPTION, ALTERATION, LOSS, OR OTHER DAMAGES THAT YOU AND/OR YOUR DATA (INCLUDING YOUR CONTENT) MAY SUFFER, THAT ARE BEYOND OUR CONTROL.
    3. EXCEPT AS EXPRESSLY SET FORTH HEREIN, FRESH DOES NOT WARRANT, AND EXPRESSLY DISCLAIM ANY WARRANTY OR REPRESENTATION THAT THE PLATFORM, FRESH MATERIALS, AND/OR SERVICE (OR ANY PORTION THEREOF) IS COMPLETE, ACCURATE, OF ANY CERTAIN QUALITY, RELIABLE, SUITABLE FOR, OR COMPATIBLE WITH, ANY OF YOUR CONTEMPLATED ACTIVITIES, DEVICES, OPERATING SYSTEMS, BROWSERS, SOFTWARE OR TOOLS (OR THAT IT WILL REMAIN AS SUCH AT ANY TIME), OR COMPLY WITH ANY LAWS APPLICABLE TO YOU.
15. INDEMNITY. You hereby agree to indemnify, defend, and hold harmless Fresh and its subsidiaries, divisions, affiliates, officers, directors, shareholders, employees, agents, service providers, contractors, assigns, users, clients, providers, licensees, and successors in interest ("Indemnified Parties") from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation ("Claim") against any Indemnified Party arising in any manner from: (1) your access to or use of the Platform or any Fresh Materials or Services; (2) Your Content, or any other information or data you Provide to Fresh; (3) your violation of applicable Laws; and (4) your breach of any provision of these Platform Terms. Fresh will use reasonable efforts to provide you with notice of any such claim or allegation, and Fresh will have the right to participate in the defense of any such claim at its expense. For New Jersey users, you would not be required to defend, indemnify or hold harmless Indemnified Parties from and against Claims arising out of the Indemnified Party's own negligence.
16. LIMITATION ON LIABILITY. NOTWITHSTANDING ANYTHING IN THESE PLATFORM TERMS OR ELSEWHERE TO THE CONTRARY AND TOTHE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FRESH AND ITS AFFILIATES, SUBSIDIARIES, DIVISIONS, AND SERVICE PROVIDERS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE ACCESS TO OR USE OF THE PLATFORM OR ANY FRESH MATERIALS OR SERVICES, EVEN IF FRESH AND ITS SUBSIDIARIES, DIVISIONS, AND SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF YOUR CONTENT, OPPORTUNITY, REVENUES, PROFITS OR REPUTATION, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE MATERIALS, GOODS OR SERVICES. THE TOTAL CUMULATIVE LIABILITY OF FRESH AND ITS AFFILIATES, SUBSIDIARIES, DIVISIONS, AND SERVICE PROVIDERS IN CONNECTION WITH THESE PLATFORM TERMS, THE PLATFORM AND ALL FRESH MATERIALS AND SERVICES, OR ANY PRODUCTS PROVIDED UNDER THESE PLATFORM TERMS OR THROUGH THE PLATFORM, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE GREATER OF $1,000, OR THE AMOUNTS PAID BY YOU TO US OR PAID BY US TO YOU, RESULTING FROM ANY ORDERS MADE IN THE MONTH IMMEDIATELY PRECEDING THE ACT GIVING RISE TO SUCH LIABILITY. YOU AGREE THAT FRESH WOULD NOT ENTER INTO THESE PLATFORM TERMS WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, THE LIABILITY OF FRESH AND ITS AFFILIATES, SUBSIDIARIES, DIVISIONS, AND SERVICE PROVIDERS IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. NOTICE TO NEW JERSEY CONSUMERS: THESE LIMITATIONS OF LIABILITY APPLY IN NEW JERSEY.
17. DATA PRIVACY. You agree to comply with the Privacy Policy posted on the Platform (the "Privacy Policy"). You expressly consent to the use and disclosure of your personal information and other data and information as described in the Privacy Policyhttps://proclaimhealth.com/policies/privacy-policy.
18. FEEDBACK. If you provide Fresh any feedback or suggestions regarding the Platform or any Fresh Materials or Services ("Feedback"), you herby assign to Fresh all rights in the Feedback and agree that Fresh shall have the right to use such Feedback and related information in any manner it deems appropriate without a duty of accounting to you. Fresh will treat any Feedback you provide to Fresh as non-confidential and non-proprietary. You agree that you will not submit to Fresh any information or ideas that you consider to be confidential or proprietary.
19. NOTICES. Unless otherwise specified in these Platform Terms, any notices required or allowed under these Platform Terms will be provided to Fresh by postal mail to Fresh Health, Inc., 745 W. Evelyn Ave., Mountain View, California 94140. Fresh may provide you with any notices required or allowed under these Platform Terms by sending you an email to any email address you provide to Fresh, provided that in the case of any notice applicable both to you and other Users of the Platform, Fresh may instead provide such notice by posting on the Platform. Notices provided to Fresh will be deemed given when actually received by Fresh. Notice provided to you will be deemed given 24 hours after posting to the Platform or sending via e-mail, unless (as to e-mail) the sending party is notified that the e-mail address is invalid.
20. LINKED SITES. The Platform or any Fresh Materials or Services may contain links to third-party Platforms or content that are not under the control of Fresh. If you access a third-party sites or content from the Platform or any Fresh Materials Services, then you do so at your own risk and Fresh is not responsible for any content on any linked site. You may not frame or otherwise incorporate into another site the Fresh Materials or other materials on the Platform without Fresh's prior written consent.
21. ADDITIONAL TERMS. Unless otherwise amended, these Platform Terms, any Executed Agreement, and any other written agreement between the parties (e.g., Business Associate Agreement), will exclusively govern your access to and use of the Platform or any Fresh Materials or Services, and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding your access to and use of the Platform or any Fresh Materials or Services. Except as expressly set forth in these Platform Terms, these Platform Terms may be amended or modified only by a writing signed by both parties. You agree as it relates to our remedy at law for any actual or threatened breach of these Platform Terms that Fresh shall be entitled to specific performance or injunctive relieve, or both, in addition to any damages that we may be legally entitled to recover. No right or remedy shall be exclusive of any other, whether at law or in equity. All waivers by Fresh under these Platform Terms must be in writing or later acknowledged by Fresh in writing. Any waiver or failure by Fresh to enforce any provision of these Platform Terms on one occasion will not be deemed a waiver by Fresh of any other provision or of such provision on any other occasion. Neither Fresh nor you will be liable hereunder by reason of any failure or delay in the performanceof its obligations on account of events beyond the reasonable control of a party, which may includedenial-of-service attacks, interruption or failure of the Internet or any utility service, failures in third-partyhosting services, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action. The parties are independent contractors. These Platform Terms do not create a partnership, franchise, joint venture, fiduciary, employment relationship between the parties. There are no third-party beneficiaries to these Platform Terms. If any provision of these Platform Terms is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to these Platform Terms will be entitled to receive its costs, expert witness fees and reasonable attorneys' fees, including costs and fees on appeal. You agree that each of Fresh's service providers shall be considered a third party beneficiary of the above provisions, with all rights to enforce such provisions as if a service provider were a party to these Platform Terms. Neither these Platform Terms nor any rights or obligations of you hereunder may be assigned or transferred by you (in whole or in part and including by sale, merger, consolidation, or other operation of law) without the prior written approval of Fresh. Any assignment in violation of the foregoing will be null and void. Fresh may assign these Platform Terms to any party that assumes Fresh's obligations hereunder. The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. Any reference herein to "including" will mean "including, without limitation."
22. DISPUTE RESOLUTION
    
    

    Please read this section carefully — it may significantly affect your legal rights. It contains procedures for mandatory pre-dispute resolution, binding arbitration, and a jury trial and class action waiver.

    1. Definitions.
       1. "Dispute" means any claim or controversy between you and Fresh, including but not limited to any: (1) claims for relief or theories of liability, whether based in contract, tort, fraud, misrepresentation, statute or otherwise, or that relate to the existence of these Platform Terms; (2) claims that arose before this or any Agreement; (3) claims that may arise in the future, including claims that may arise after the cancelation or expiration of these Platform Terms; and (4) claims that are the subject of a putative class action in which no class has been certified. "Dispute" will be given the broadest possible meaning permitted by law. "Dispute" does not, however, include any issues arising from or relating to the arbitrability of any Disputes under this provision or the scope, validity, or enforceability of this arbitration provision.
       2. For purposes of this Dispute Resolution section, "Fresh" means Fresh Health, Inc., and any of its predecessors, successors, assigns, parents, subsidiaries, affiliates, vendors and independent contractors, and each of their officers, directors, employees and agents.
    2. Informal Dispute Resolution Process.
       1. Should you and Fresh (each a "party," and collectively, the "parties") have a Dispute, the parties agree that they will make a good faith effort to resolve it informally. Compliance with this informal dispute resolution process is a condition precedent to commencing any formal Dispute resolution proceeding in arbitration, small claims court, or otherwise.
       2. The parties agree that any relevant limitations period and filing fee or other deadlines will be tolled while the parties engage in this informal Dispute resolution process.
       3. In connection with any Dispute, you or Fresh must first send written notice to the other party, providing: your name and contact information (address, telephone number, and email address) if you are sending the notice, or Fresh's contact information if Fresh is sending the notice; sufficient information for you or Fresh to identify any transaction at issue; and a detailed description of and explanation for (1) the Dispute; (2) the nature and basis of any claim; and (3) the nature, basis, and calculation of the relief sought. Your notice to Fresh must be personally signed by you (and your attorney if you are represented). Fresh's notice to you will be personally signed by a Fresh representative (and Fresh's attorney if we are represented). Your notice to Fresh must be sent by email custcomercare@proclaimhealth.com or by mail to Fresh Health, Inc., 745 W. Evelyn, Ave., Mountain View, CA 94140, Attention: Legal Department. Fresh's notice to you will be sent to you based on the most recent contact information that you have provided to Fresh. You and Fresh agree to negotiate in good faith about the Dispute, including through an informal and individualized telephone settlement conference if Fresh requests one in connection with your notice (at which you agree to appear along with your attorney if you are represented) or if you request one in connection with Fresh's notice (at which Fresh agrees to send a representative along with our attorney if we are represented). The parties agree to participate in good faith in this conference, which will be held at a time convenient for both parties, and throughout this informal process.
       4. If the sufficiency of a notice or compliance with this informal Dispute resolution process is at issue, it may be decided by a court at either party's election, and any formal Dispute resolution proceeding shall be stayed pending resolution of the issue. A court shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration.
       5. This informal Dispute resolution process should lead to the resolution of the Dispute, but if for some reason it is not resolved within sixty (60) days after receipt of the information required above, which can be extended by agreement of the parties, you and Fresh agree to the further Dispute resolution provisions below.
    3. Mutual Arbitration Provision.
       1. Any Dispute between you and Fresh that is not resolved as set forth above shall be resolved through binding individual arbitration or small claims court. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court. If you and Fresh are unable to resolve the Dispute through the mandatory informal Dispute resolution process, you and Fresh unconditionally agree that, except as set forth below, all Disputes between you and Fresh will be resolved entirely through binding individual arbitration, rather than in court, which include, without limitation, such Disputes arising out of or relating to any aspect of the relationship between you and Fresh, your access or use of the Portal, Fresh Materials, or Services offered by or from Fresh through the Fresh websites, Portal, Fresh Materials, or Services, and Fresh's advertising, marketing, and communications.
       2. The sole exceptions to the foregoing requirement to arbitrate are that: (1) either party may elect to have individual claims heard in small claims court if those claims otherwise qualify for small claims court and as long as the matter remains in such court and is not removed or appealed to a court of general jurisdiction and advances only on an individual (non-class, non-representative basis); and (2) each party may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
       3. This Dispute Resolution section evidences a transaction in interstate commerce, and thus the Federal Arbitration Act ("FAA") governs the interpretation and enforcement of this Dispute Resolution section. You and Fresh agree that we intend that this Dispute Resolution section satisfies the "writing" requirement of the FAA.
       4. This Mutual Arbitration provision shall survive termination of these Platform Terms.By agreeing to these Terms, each party gives up its right to bring and prosecute any disputes in a court of law or before a jury except as expressly provided herein. You also give up your right to participate in or bring class actions or representative actions.
    4. Right to Enjoin Intellectual Property Misuse.
       1. As set forth above, notwithstanding anything in this arbitration provision to the contrary, either you or Fresh may bring suit in court to enjoin infringement or otherwise enforce intellectual property rights.
    5. Procedures for Arbitration.
       1. Arbitrations shall be heard and determined by a single arbitrator and be administered by the American Arbitration Association ("AAA") pursuant to its Consumer Arbitration Rules if you are an individual, or its Commercial Arbitration Rules if you are an organization (collectively the "AAA Rules") as modified by the version of this arbitration provision that is in effect when notice of a Dispute is given. The AAA Rules can be obtained from the AAA by visiting its website (www.adr.org). If there is a conflict between this arbitration provision and the rest of these Platform Terms, this arbitration provision will govern. If there is a conflict between this arbitration provision and the AAA Rules, this arbitration provision will govern. If the AAA is unavailable or unwilling to administer an arbitration in accordance with this arbitration provision, you and Fresh will work together in good faith to agree on (or if necessary petition a court of appropriate jurisdiction to appoint) an arbitration organization that will do so. Unless you and Fresh agree otherwise, any in-person arbitration hearing will take place in the county where you reside.
       2. To begin an arbitration proceeding, after satisfying the condition precedent identified above, you or Fresh must (1) send a verified and personally signed demand for arbitration that describes (a) the nature and basis of the claims, and (b) the nature and basis of the relief sought, including a detailed calculation for it; (2) send the signed certification of completion of the process set forth in the Informal Dispute Resolution Process section; and (3) contact the AAA or the applicable court-appointed arbitration administrator and follow the appropriate procedures to commence the arbitration. If you or Fresh are represented by an attorney in connection with your or Fresh's arbitration demand, you and Fresh agree that any arbitration demand must also be signed by your or our attorney. By signing the arbitration demand, the attorney certifies to the best of their information, knowledge, and belief, formed after a reasonable inquiry that: (1) the arbitration demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims or other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after reasonable opportunity for further investigation or discovery. The arbitrator shall be authorized to impose any sanctions available under Federal Rule of Civil Procedure 11. Your demand for arbitration must be sent to: Fresh Health, Inc., 745 W. Evelyn Ave., Mountain View, California 94140, Attention: Legal Department. Fresh's demand for arbitration to you will be sent to you based on the most recent contact information that you have provided to Fresh.
       3. Payment of all filing, administration and arbitrator fees will be governed by the applicable AAA Rules. The parties shall be responsible for their own attorneys' fees and costs in arbitration, unless they are authorized by law, or the arbitrator determines that a claim was frivolous or brought for an improper purpose or in bad faith (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). In addition, the provisions of Federal Rule of Civil Procedure 68 (cost-shifting) shall apply and be enforced by the arbitrator after entry of an award.
       4. The arbitration may be conducted by telephone, video, based on written submissions, or in-person in the county where you live or at another mutually agreed location. If requested, you shall personally appear (with your counsel if you are represented) or Fresh shall have a representative (with counsel if Fresh is represented) personally appear at any in-person, video, or telephonic hearing. Notwithstanding anything to the contrary, Fresh will pay all fees and costs that Fresh is required by law to pay.
       5. The arbitration will be conducted by a single arbitrator who will apply and be bound by these Platform Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis. The arbitrator shall issue a reasoned written award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party's individual claim. The arbitration award shall be binding only among the parties to the arbitration and shall have no preclusive effect in any other arbitration or other proceeding involving a different party.
    6. Waiver of Jury Trials.
       1. Disputes in arbitrations and small claims court are resolved without a jury trial. Whether in arbitration or court, you and Fresh waive the right to a jury trial to the maximum extent permitted by law.
       2. As set forth above, Fresh and you each agree to bring any dispute on an individual basis only, and not on a class, consolidated, representative or collective or private attorney general basis. If for any reason a claim proceeds in court rather than in arbitration, Fresh and you each waive any right to a jury trial or to participate in a class action against the other to the maximum extent permitted by law.
       3. A Dispute may not be consolidated with a claim by any person or entity that is not a party to the arbitration proceeding, and the arbitrator may not otherwise preside over any form of a class, consolidated, representative, collective, or private attorney general proceeding. If a court determines that any of the prohibitions on non-individualized relief; class, representative, and private attorney general claims; and consolidation are unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief), and all appeals from that decision have been exhausted (or the decision is otherwise final), then the parties agree that that particular claim or request for relief may proceed in court but shall be stayed pending arbitration of the remaining claims. Specifically, and notwithstanding anything to the contrary in this Dispute Resolution section, the arbitrator may not issue a "public injunction" and any such "public injunction," if permitted, may be awarded only by a federal or state court. If either party is permitted to seek a "public injunction," all other claims and prayers for relief must be adjudicated in arbitration first and any such prayer or claim for a "public injunction" in federal or state court stayed until the arbitration is completed, after which the federal or state court can adjudicate the party's claim or prayer for "public injunctive relief." In doing so, the federal or state court is bound under principles of claim or issue preclusion by the decision of the arbitrator. Notwithstanding any other provision of this Dispute Resolution section, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.
    7. Additional Procedures for Mass Arbitration.
       1. If fifty (50) or more similar claims are asserted against Fresh by the same or coordinated counsel or are otherwise coordinated, you understand and agree that the resolution of your Dispute might be delayed. You also agree to the following staged process and application of the AAA Multiple Consumer Case Filing Fee Schedule and to address any issues related to compliance with the AAA filing requirements with a Procedural Arbitrator consistent with the AAA rules. Counsel for the claimants and counsel for Fresh shall each select twenty-five (25) cases (per side) to proceed first in individual arbitration proceedings as part of an initial staged bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a staged process. Each side may elect to have its cases for any given set of proceedings selected by it, by the AAA, or randomly. The parties agree that after completion of the first set of fifty (50) individual arbitration proceedings, they shall participate in a mediation session with a former state or federal court judge in an effort to resolve the remaining claims or to discuss potential ways to streamline the procedures for adjudicating the remaining claims. If the parties are unable to resolve the remaining cases after the conclusion of the initial fifty (50) proceedings, each side shall select another twenty-five (25) cases (per side) to proceed to individual arbitration proceedings as part of a second staged bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a staged bellwether process. Each side may elect to have its cases for any given set of proceedings selected by it, by the AAA, or randomly. The parties agree that after completion of the second set of fifty (50) individual arbitration proceedings, they shall participate in a second required mediation session with a former state or federal court judge in an effort to resolve the remaining claims or to discuss potential ways to streamline the procedures for adjudicating the remaining claims. If the parties are unable to resolve the remaining cases after the conclusion of the second set of fifty (50) proceedings, this staged process shall continue, consistent with the parameters set forth above, except that the parties agree that one hundred (100) cases shall be selected by the AAA or randomly to proceed individually in each subsequent set of staged proceedings subject to review and modification by agreement of the parties at any time. The remaining cases shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a staged process. The parties agree to meet and confer throughout this process to discuss issues, including but not limited to, increasing the number of cases to proceed in each set of staged proceedings, selecting claims to proceed in sets of proceedings as a percentage rather than a fixed number, resolving claims, or to otherwise modify the procedures to resolve the remaining claims as informed by the prior arbitration proceedings. In between staged processes beyond the first two sets, claimants' counsel may elect to require Fresh to participate in another mediation session to discuss resolution of the remaining claims. A single arbitrator shall preside over each case. Each arbitrator shall aim to issue its award within 120 days after appointment. Only one case may be assigned to each arbitrator as part of each set within this staged process unless the parties agree otherwise. This staged process shall continue, consistent with the parameters identified above, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved. The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this mass arbitration process from the time of the first cases are selected for a process until the time your case is selected for a process, withdrawn, or otherwise resolved. A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands. Consistent with these additional procedures, the parties may elect to meet and confer, enter into a "cooling off" period, and/or mediate any or all of the remaining claims at any time or to discuss and agree to modifications to this process to ensure efficiency. Should Fresh initiate a claim against you that is part of a mass arbitration, Fresh agrees that such provisions shall apply.
    8. Governing Law and Forum.
       1. These Platform Terms will be governed by and construed in accordance with, and any Dispute will be resolved in accordance with the FAA and the laws of the State of California, without regard to its conflicts of law provisions. To the maximum extent permitted by law, to the extent any matter proceeds in court, except for small claims court, including any disputes over the enforceability of these Terms that are for a court to decide, you consent to the exclusive jurisdiction of the federal and state courts located in the Santa Clara County, California.
    9. Future Changes to Dispute Resolution Section.
       1. Notwithstanding any provision to the contrary, we agree that if Fresh makes any future changes to this Dispute Resolution section (other than a change to the mailing or email address), you may reject any such change by sending us written notice within thirty (30) days of the change to the address provided above. This is not an opt-out of arbitration altogether. By rejecting any future change, you are agreeing that you will arbitrate any Dispute between you and Fresh in accordance with the language of this Dispute Resolution section.
    10. Survival.
        1. This Dispute Resolution section shall survive the cancellation or expiration of the Platform Terms.