Terms Of Sale

PROCLAIM TERMS OF SALE

THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.

THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

BY PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM THIS WEBSITE, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS.

YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH FRESH HEALTH, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.

These terms and conditions (these “Terms”) apply to the purchase and sale of products and services through www.proclaimhealth.com (the “Site”). These Terms are subject to change by Fresh Health, Inc. (referred to as “Fresh Health”, “us”, “we”, or “our” as the context may require) without prior written notice at any time, in our sole discretion. The latest version of these Terms will be posted on this Site, and you should review these Terms before purchasing any product or services that are available through this Site. Your continued use of this Site after a posted change in these Terms will constitute your acceptance of and agreement to such changes.

These Terms are an integral part of the Website Terms of Use that apply generally to the use of our Site, and our Privacy Policy, both of which are incorporated herein by reference. You should carefully review our Website Terms of Use and Privacy Policy before placing an order for products or services through this Site.
Order Acceptance. You agree that your order is an offer to buy, under these Terms, all products and services listed in your order (“Products”). All orders must be accepted by us or we will not be obligated to sell the products or services to you. We may choose not to accept any orders in our sole discretion. After having received your order, we will send you a confirmation email with your order number and details of the Products you have ordered. After placing your order, we will store a virtual inventory of the Products you have purchased until such time that you sell a Product in your inventory to an individual patient (“End-User Customer”) and submit an intra-oral scan of the End-User Customer's mouth through your professional portal account on the Site. Upon receipt of the scan we will manufacture the physical Product (if none available in our general inventory) and custom mouthpiece, and ship the Product to you pursuant to Section 5 below.
End User Sales. You understand and acknowledge that you are the seller of the Products to End-User Customers and are solely responsible and liable for the transaction between you and the End-User Customer. Except for the Limited Warranty described in these Terms, Fresh Health does not in any way act as a seller or intermediary between you and the End-User Customers, other than in connection with the Limited Warranty described in these Terms. You are solely responsible for the pricing of the Fresh Health products sold by you; provided, however, that you will not sell a Product for an amount exceeding the applicable price of the Product (without any coupons or discounts) listed by Fresh Health on the Site at the time you sell to the End-User Customer. You understand that the maximum price per Product is subject to change without notice and it is your responsibility to regularly check the Site for current pricing restrictions. You are responsible for the collection and remittance of any and all taxes on sales of products to the End-User Customer.
Prices and Payment Terms.
1. All prices posted on this Site are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in your order confirmation email. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total and will be itemized in your shopping cart and in your order confirmation email. We are not responsible for pricing, typographical, or other errors in any offer by us and we reserve the right to cancel any orders arising from such errors.
2. Terms of payment are within our sole discretion and, payment must be received by us before our acceptance of an order. We most major credit cards and other forms of payment as indicated in the checkout portal for all purchases. You represent and warrant that (i) the credit card information you supply to us is true, correct, and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.
Shipments; Delivery; Title and Risk of Loss.
1. We will arrange for shipment of the Products directly to the End-user Customer. Please check the individual product page for specific delivery options. [The End-User Customer/You] will pay all shipping and handling charges specified during the ordering process.
2. Title and risk of loss pass to the End-User Customer upon delivery. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
The Proclaim Promise; Cancellations. Your order Products will be considered final sale upon receiving an order confirmation number, with no cancellations or refunds allowed in your virtual inventory number. The End-User Customer will be allowed to return a Product for a full refund of the purchase price provided such return is made within 30 days of delivery and provided such Product is returned in its original condition and original product packaging. To return products, End-User Customer must call 888-576-3756 or email our Returns Department at customercare@proclaimhealth.com to obtain a Return Merchandise Authorization (“RMA”) number before shipping their product. No returns of any type will be accepted without an RMA number and we will provide a pre-paid return shipping label to the End-User Customer for the return when we provide the RMA. Within three (3) business days of us providing you notice that an End-User Customer has completed a return of the Product, you shall credit back to the End-User Customer the full amount of the purchase price paid to you on the same payment method used to make the purchase from you. Upon you providing written notice at customercare@proclaimhealth.com with proof of refund of purchase price to the End-User Customer, we shall add the returned Product quantity back to your virtual inventory number.
Prohibited Acts. Notwithstanding anything to the contrary in these Terms, neither you, nor any of your affiliates or representatives, shall:
1. make any representations, warranties, guarantees, indemnities, similar claims, or other commitments actually, apparently, or ostensibly on behalf of Fresh Health, or to any End-User Customer regarding the Products, which representations, warranties, guarantees, indemnities, similar claims or other commitments are in addition to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, similar claims or other commitments, in these Terms or any written documentation provided by Fresh Health to you;
2. engage in any unfair, competitive, misleading, or deceptive practices regarding Fresh Health, our trademarks, or the Products, including any product disparagement;
3. sell, assign, or otherwise transfer in any way, any Products to any person (or entity) when you know or have reason to suspect that the person (or entity) may resell any or all of the Products to a third party;
4. make any claims regarding the use of Products which do not appear on the label of Product or our online product listing; or
5. create a website to resemble ours, drive traffic to your own direct website by use of our name or Products (including use of search engine optimization methods) or otherwise use the Marks, name of Products, or other information linking to Fresh Health or the Products in any current or modified form to market, advertise, or sell the Products except as allowed pursuant to Section 9 of these Terms.
LIMITED PRODUCT WARRANTY.

FRESH HEALTH SHALL EXTEND TO THE END-USER CUSTOMER THAT CERTAIN LIMITED WARRANTY WHICH CAN BE LOCATED AT WWW.PROCLAIMEHEALTH.COM/WARRANTY AND IN THE DOCUMENTATION WE PROVIDE WITH THE PRODUCTS. EXCEPT FOR SUCH LIMITED WARRANTY DESCRIBED IN THIS SECTION, FRESH HEALTH MAKES NO REPRESENTATIONS OR WARRANTIES AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, STATEMENT OR INFORMATION ORALLY OR IN WRITING MADE OR COMMUNICATED TO YOU OR AN END-USER CUSTOMER INCLUDING BUT NOT LIMITED TO ANY OPINION, INFORMATION OR ADVICE WHICH MAY HAVE BEEN PROVIDED TO YOU OR AN END-USER CUSTOMER BY FRESH HEALTH OR YOU; AND FRESH HEALTH HAS NOT MADE, AND SELLER HEREBY EXPRESSLY DISCLAIMS AND NEGATES, ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE.
Non-Exclusive License. For as long as you have purchased Products in our virtual inventory, Fresh Health grants you a non-exclusive, non-assignable right and license to use Fresh Health's name, logo, and/or information linking patients to the Site (“Marks”) on your website for the sole and limited purpose of advertising to your patients the ability to purchase Products directly from you. We shall have the right to exercise quality control over your use of the Marks and we shall be the sole arbiter and judge of whether you have met or are meeting our specifications and standards of quality. Should, at any time, Fresh Health determine, in its reasonable discretion, that use of the Marks are not compliant with its quality standards and specifications and/or are adversely affecting the goodwill associated with the Marks, Fresh Health shall have the right to: (a) require that you amend its usage of the Marks as directed by Fresh Health to meet its standards of quality; (b) revoke the license granted herein in its sole discretion and upon written notice; and/or (c) demand indemnification for misuse pursuant to Section 10 of these Terms.
Indemnification. Subject to the terms and conditions of these Terms, you shall indemnify, hold harmless, and defend Fresh Health and its parents, affiliates, officers, directors, managers, shareholders, members, employees, agents, successors, and representatives (collectively the “Indemnified Parties”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees, the costs of enforcing any right to indemnification under these Terms, and the cost of pursuing any insurance providers, relating to any claim of a third party or End-User Customer, arising out of or occurring in connection with (i) your breach or non-fulfillment of any representation, warranty or covenant under these Terms; (ii) your acts or omissions in connection with the performance of your obligations under these Terms; (iii) any bodily injury, death, or damage to tangible property caused by the your acts or omissions; or (iv) your failure to comply with any applicable laws.

If an Indemnified Party becomes aware of any claim, event, or fact that may give rise to a claim by the Indemnified Party against you for indemnification under Section 10, the Indemnified Party shall promptly notify you. The Indemnified Party shall give you control over the proceedings and shall reasonably cooperate in the investigation, settlement, and defense of such claims at your expense; provided that the Indemnified Party may, at its own expense, participate in such defense. You shall not enter into a settlement of such claim that does not include a full release of the Indemnified Party or involves a remedy other than the payment of money, without the Indemnified Party's consent. If you do not assume control over the defense of a claim as provided in this Section 10, the Indemnified Party may defend the claim in such manner as it may deem appropriate, at your cost and expense.
Privacy. We respect your privacy and are committed to protecting it. Our Privacy Policy, https://proclaimhealth.com/policies/privacy-policy, governs the processing of all personal data collected from you in connection with your purchase of products or services through the Site.
Force Majeure. Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms (except for any of your obligations to make payments to us hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of these Terms; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the reasonable control of the Impacted Party. If we experience a Force Majeure Event that may affect the fulfillment of your order or our performance hereunder, we will use reasonable efforts to give you notice within 60 days of the Force Majeure Event along with how long we expect such event expected to continue. We will resume the performance of our obligations as soon as reasonably practicable after the removal of the cause. In the event that our failure or delay remains uncured for a period of 60 consecutive days following written notice given by it under this Section, you may cancel your order or other agreement with us by providing written notice of such cancellation.
Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
No Waivers. The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Fresh Health.
No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person other than you.
Notices.
1. To You. We may provide any notice to you under these Terms by: (i) sending a message to the email address you provide or (ii) by posting to the Site. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
2. To Us. Unless otherwise specified in these Terms, to give us notice under these Terms, you must contact us as follows by personal delivery, overnight courier or registered or certified mail to Fresh Health, Inc., 745 W. Evelyn Ave., Mountain View, California 75120. We may update the address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by registered or certified mail will be effective three business days after they are sent.
Severability. If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
Entire Agreement. Our order confirmation, these Terms, our Website Terms of Use and our Privacy Policy will be deemed the final and integrated agreement between you and us on the matters contained in these Terms.
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 Health, 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 Terms of Use; (2) claims that arose before this or any Terms; (3) claims that may arise in the future, including claims that may arise after the cancelation or expiration of these Terms of Use; 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 Health” 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 Health (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 Health 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 Health's contact information if Fresh Health is sending the notice; sufficient information for you or Fresh Health 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 Health must be personally signed by you (and your attorney if you are represented). Fresh Health's notice to you will be personally signed by a Fresh Health representative (and Fresh Health's attorney if we are represented). Your notice to Fresh Health must be sent by email info@Freshealth.com or by mail to Fresh Health, Inc., 745 W. Evelyn, Ave., Mountain View, CA 95120, Attention: Legal Department. Fresh Health's notice to you will be sent to you based on the most recent contact information that you have provided to Fresh Health. You and Fresh Health agree to negotiate in good faith about the Dispute, including through an informal and individualized telephone settlement conference if Fresh Health 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 Health's notice (at which Fresh Health 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 Health agree to the further Dispute resolution provisions below.
3. Mutual Arbitration Provision.
  1. Any Dispute between you and Fresh Health 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 Health are unable to resolve the Dispute through the mandatory informal Dispute resolution process, you and Fresh Health unconditionally agree that, except as set forth below, all Disputes between you and Fresh Health 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 Health, including your purchase of any products or services offered by or from Fresh Health through the Website, and all 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 Health 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 Terms of Use. 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 Health 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 (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 Terms of Use, 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 Health 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 Health 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 Health 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 Health are represented by an attorney in connection with your or Fresh Health's arbitration demand, you and Fresh Health 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 75120, Attention: Legal Department. Fresh Health's demand for arbitration to you will be sent to you based on the most recent contact information that you have provided to Fresh Health.
  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 Health shall have a representative (with counsel if Fresh Health is represented) personally appear at any in-person, video, or telephonic hearing. Notwithstanding anything to the contrary, Fresh Health will pay all fees and costs that Fresh Health is required by law to pay.
  5. The arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms of Use, 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 Health waive the right to a jury trial to the maximum extent permitted by law.
  2. As set forth above, Fresh Health 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 Health 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 Health 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 Health 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 Health 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 Health initiate a claim against you that is part of a mass arbitration, Fresh Health agrees that such provisions shall apply.
8. Governing Law and Forum.
  1. These Terms of Use 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 Health 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 Health 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 Terms of Use.
For Further Information.

If you have questions or concerns about these Terms of Use, please contact us at:

Fresh Health Inc.
745 W Evelyn Ave
Mountain View, CA 94041
info@freshhealth.com

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