PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. This Section 20 requires you to waive your right to a jury trial and arbitrate certain disputes and claims with 1stCallHEALTH and limits the manner in which you can seek relief from us. As set forth in this Section 20, no class or representative actions or arbitrations are allowed.
You and 1stCallHEALTH agree that any dispute arising out of or related to this Agreement or the Service is personal to you and 1stCallHEALTH and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action, or any other type of representative action or proceeding.
You and 1stCallHEALTH agree that this Agreement affects interstate commerce and that the enforceability of this Section 20 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, this Agreement, and the Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action or proceeding, which is prohibited by this Agreement. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative action or proceeding, or preside over any action or proceeding involving more than one individual.
The arbitrator, 1stCallHEALTH, and you will maintain the confidentiality of any proceedings, including, but not limited to, any and all information gathered, prepared, and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard that confidentiality, unless the law provides to the contrary.
You and 1stCallHEALTH agree that, for any arbitration you initiate, you will pay the filing fee and 1stCallHEALTH will pay the remaining JAMS fees and costs. For any arbitration initiated by 1stCallHEALTH, 1stCallHEALTH will pay all JAMS fees and costs, including the filing fee. [If you receive an arbitration award that is more favorable than any offer we make to resolve the claim, we will pay you $1,000 in addition to the award. 1stCallHEALTH will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.] You and 1stCallHEALTH agree that the state or federal courts of the District of Columbia and the United States of America sitting in Washington, DC, USA have exclusive jurisdiction over any appeals and the enforcement of any arbitration awards.
Any claim arising out of or related to this Agreement or the Service must be filed within one (1) year after such claim arose; otherwise, to the maximum extent permitted by applicable law, the claim is permanently barred, which means that neither you nor 1stCallHEALTH will have the right to assert the claim. There may be jurisdictions in which this contractual limit on the statute of limitations does not apply. Class Action Waiver: The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND 1STCALLHEALTH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception for Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
Survival: This Arbitration and Class Action Waiver section shall survive any termination of your Account or the Services. If any portion of this Section 20 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from this Agreement; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 20 or the Parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 20; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 20 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 20 will be enforceable.