Last Updated: 11/23/2023
Welcome, and thank you for your interest in Index Health, Inc. (“Index Health,” “we,” or “us”) and our website at www.indexclinic.com, along with our related websites, hosted applications, and other services provided by us (collectively, the “Service”). These Membership Terms of Service are a legally binding contract between you and Index Health regarding your use of the Service.
Index Health is affiliated with medical professional corporations and their affiliated medical services providers, including but not limited to Ziemba Medical, P.C. (the professional corporations collectively, “Index Clinic”), where Index Health provides management, administrative, and information technology services to Index Clinic. Index Clinic provides medical services, including telehealth services. These Terms govern your access to, and use of, the Service offered by Index Health. Our Medical Terms of Service govern your use of medical services provided by Index Clinic. Please read the Medical Terms of Service carefully before using our medical services.
Please read the following terms carefully:
YOU AGREE TO RECEIVE TEXTS AND CALLS FROM OR ON BEHALF OF INDEX HEALTH AT THE PHONE NUMBER YOU PROVIDE TO US. THESE TEXTS AND CALLS WILL INCLUDE APPOINTMENT REMINDERS, MESSAGES RELATED TO TESTING, BILLING, INSURANCE, MEMBERSHIP, AND OTHER ADMINSTRATIVE MESSAGES RELATED TO YOUR USE OF THE SERVICE, AS WELL AS MESSAGES RELATED TO PRICING. WE MAY ALSO USE TEXTS OR CALLS FOR MARKETING PURPOSES. YOU UNDERSTAND AND AGREE THAT THESE TEXTS AND CALLS MAY BE CONSIDERED TELEMARKETING UNDER APPLICABLE LAW, THEY MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A CONDITION OF ANY PURCHASE.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 15 (Dispute Resolution and Arbitration), you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND INDEX HEALTH ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
You must be at least 18 years old to sign up for the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are also accepting these Terms on behalf of another person (a “Family Member”) as that person’s parent, guardian, conservator, or custodian, you acknowledge that you are additionally agreeing to these Terms on behalf of such Family Member, and you represent and warrant to us that you are legally authorized to agree to these Terms on their behalf. You also acknowledge that, should your Family Member disaffirm these Terms, you will continue to be bound on their behalf (including with respect to accrued payment obligations).
Accounts and Registration.
To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself (and if applicable, your Family Members), such as your name, email address, gender, date of birth, phone number, and other personal and contact information. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at firstname.lastname@example.org.
General Payment Terms.
Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. Unless otherwise specifically provided for in these Terms, all fees are in U.S. Dollars and are non-refundable, except as required by law.
- Price. Index Health reserves the right to determine pricing for the Service. Index Health will make reasonable efforts to keep pricing information published on the Service up to date. We encourage you to check our pricing page periodically for current pricing information. Index Health may change the fees for any feature of the Service, including additional fees or charges, if Index Health gives you advance notice of changes before they apply. Index Health, at its sole discretion, may make promotional offers with different features and different pricing to any of Index Health’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
- Authorization. You authorize Index Health to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Index Health, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, then Index Health may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
- Subscription Service. The Service may include certain subscription-based plans with automatically recurring payments for periodic charges (“Subscription Service”). The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. The Subscription Service will begin on the Subscription Billing Date and continue for the subscription period that you select on your account (such period, the “Initial Subscription Period”), and will automatically renew for successive periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each such renewal period, each a “Subscription Period”) unless you cancel the Subscription Service or we terminate it. If you activate a Subscription Service, then you authorize Index Health or its third-party payment processors to periodically charge, on a going-forward basis and until cancellation of the Subscription Service, all accrued sums on or before the payment due date. For information on the “Subscription Fee”, please see our pricing page. Your account will be charged automatically on the Subscription Billing Date and thereafter on the renewal date of your Subscription Service for all applicable fees and taxes for the next Subscription Period. You must cancel your Subscription Service at least 30 days before it renews in order to avoid billing of the next periodic Subscription Fee to your account. Index Health or its third-party payment processor will bill the periodic Subscription Fee to the payment method associated with your account or that you otherwise provide to us. You may cancel the Subscription Service by sending us a message using the messaging functionality of the Service or emailing us at email@example.com. YOUR CANCELLATION MUST BE RECEIVED AT LEAST 30 DAYS BEFORE THE RENEWAL DATE IN ORDER TO AVOID CHARGE FOR THE NEXT SUBSCRIPTION PERIOD. THE SUBSCRIPTION FEE IS LIKELY NOT A COVERED BENEFIT UNDER YOUR HEALTH INSURANCE PLAN OR OTHER HEALTHCARE BENEFIT PLAN SUCH AS THE HEALTH SAVING ACCOUNT OR FLEXIBLE SPENDING ACCOUNT, BUT YOU AGREE THAT YOU WILL BE RESPONSIBLE FOR THE COST OF SUCH ANNUAL MEMBERSHIP FEE REGARDLESS OF YOUR ABILITY TO RECEIVE REIMBURSEMENT.
- Additional Fees. In addition to the Subscription Fee, you may owe additional fees in connection with the medical services provided by Index Clinic. In some cases, some or all of the applicable fees for medical services may be bundled into the applicable Subscription Fee. If you are receiving coverage for part of the fees from your insurance plan, you may still be required to pay a Subscription Fee out of pocket. For more information, please see our Medical Terms of Service and our pricing page.
- Delinquent Accounts. Index Health may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees. If your payment method is no longer valid at the time a renewal Subscription Fee is due, then Index Health reserves the right to delete your account and any information or User Data (defined below) associated with your account without any liability to you.
- Limited License. Subject to your complete and ongoing compliance with these Terms, Index Health grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service.
- License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, then you may not use it.
- Feedback. We respect and appreciate the thoughts and comments from our users If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Index Health an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
Ownership; Proprietary Rights.
The Service is owned and operated by Index Health. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by Index Health (“Materials”) are protected by intellectual property and other laws. All Materials included in the Service are the property of Index Health or its third-party licensors. Except as expressly authorized by Index Health, you may not make use of the Materials. There are no implied licenses in these Terms and Index Health reserves all rights to the Materials not granted expressly in these Terms.
- Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
1. User Data Generally. Certain features of the Service may permit users to submit, upload, publish, broadcast, or otherwise transmit (“Upload”) content to the Service, including messages, photos, video, audio, images, lab results, folders, data, text, documents, and other materials (“User Data”). You retain any copyright and other proprietary rights that you may hold in the User Data that you Upload to the Service, subject to the licenses granted in these Terms.
2. Limited License Grant to Index Health. By Uploading User Data to or via the Service, you grant Index Health a worldwide, non-exclusive, irrevocable (in accordance with applicable law), royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, display, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute your User Data, in whole or in part, in connection with your use of the Service or the medical services provided by Index Clinic.
3. You Must Have Rights to the Content You Upload; User Data Representations and Warranties.
You must not Upload User Data if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Data. Index Health disclaims any and all liability in connection with User Data. You are solely responsible for your User Data and the consequences of providing User Data via the Service. By providing User Data via the Service, you affirm, represent, and warrant to us that:
- you are the owner of the User Data, or have the necessary licenses, rights, consents, and permissions to authorize Index Health and users of the Service to use and distribute your User Data as necessary to exercise the licenses granted by you in this Section 7 (User Data), in the manner contemplated by Index Health, the Service, and these Terms;
- your User Data, and the Uploading or other use of your User Data as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Index Health to violate any law or regulation or require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and
- your User Data could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
4. User Data Disclaimer. We are under no obligation to edit or control User Data that you or other users Upload and will not be in any way responsible or liable for User Data. Index Health may, however, at any time and without prior notice, screen, remove, edit, or block any User Data that in our sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You understand that, when using the Service, you will be exposed to User Data from a variety of sources and acknowledge that User Data may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Index Health with respect to User Data. If notified by a user or content owner that User Data allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Data, which we reserve the right to do at any time and without notice.
6. Respect of Third-Party Rights. Index Health respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service.
- Text Messaging & Phone Calls. You agree that Index Health and those acting on our behalf may call and send you text (SMS) messages at the phone number you provide us. These calls and messages may include operational calls or messages about your use of the Service, as well as marketing calls or messages. Calls and text messages may be made or sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such calls or messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF MARKETING CALLS AND TEXT MESSAGES FROM INDEX HEALTH, YOU CAN EMAIL HELLO@INDEXCLINIC.COM OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF ALL CALLS AND TEXT MESSAGES FROM INDEX HEALTH, YOU CAN EMAIL HELLO@INDEXCLINIC.COM OR TEXT THE WORD “STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receive calls and text messages for a short period while we process your request, including a message confirming the receipt of your opt-out request. Your agreement to receive marketing calls and texts is not a condition of any purchase on or use of the Service.
- Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
BY USING THE SERVICE, YOU AGREE NOT TO:
- use the Service for any illegal purpose or in violation of any local, state, national, or international law;
- violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
- access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Index Health;
- interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
- interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
- perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Service account without permission, or falsifying your age or date of birth;
- sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 5 (Ownership; Proprietary Rights)) or any right or ability to view, access, or use any Materials; or
- attempt to do any of the acts described in this Section 9 (Prohibited Conduct) or assist or permit any person in engaging in any of the acts described in this Section 9 (Prohibited Conduct).
Modification of Terms.
We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should discontinue your use of the Service. Except as expressly permitted in this Section 10 (Modification of Terms), these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
Term, Termination, and Modification of the Service.
- Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 11.2 (Termination).
- Termination. If you violate any provision of these Terms, then your authorization to access the Service and these Terms automatically terminate. In addition, Index Health may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination. You may terminate your account and these Terms at any time by sending us a message using the messaging functionality of the Service or emailing customer service at firstname.lastname@example.org.
- Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Index Health any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 4.3 (Feedback), 5 (Ownership; Proprietary Rights), 7 (User Data) 11.3 (Effect of Termination), 12 (Indemnity), 13 (Disclaimers; No Warranties by Index Health), 14 (Limitation of Liability), 15 (Dispute Resolution and Arbitration), and 16 (Miscellaneous) will survive. You are solely responsible for retaining copies of any User Data you Upload to the Service since upon termination of your account, you may lose access rights to any User Data you Uploaded to the Service. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Service using a different name, email address or other forms of account verification.
- Modification of the Service. Index Health reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Index Health will have no liability for any change to the Service, including any paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service. You should retain copies of any User Data you Upload to the Service so that you have permanent copies in the event the Service is modified in such a way that you lose access to User Data you Uploaded to the Service.
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Index Health, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Index Health Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
Disclaimers; No Warranties by Index Health.
- THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. INDEX HEALTH DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. INDEX HEALTH DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND INDEX HEALTH DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR INDEX HEALTH ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE INDEX HEALTH ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER DATA.
- THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 13 (DISCLAIMERS; NO WARRANTIES BY INDEX HEALTH) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Index Health does not disclaim any warranty or other right that Index Health is prohibited from disclaiming under applicable law.
- INDEX HEALTH ITSELF DOES NOT PROVIDE MEDICAL SERVICES. All medical services are provided by Index Clinic. Please read the Medical Terms of Service, as well as the Telehealth Consent.
Limitation of Liability.
- TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE INDEX HEALTH ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY INDEX HEALTH ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
- EXCEPT AS PROVIDED IN SECTIONS 15.5 (COMMENCING ARBITRATION) AND 15.7 (ARBITRATION RELIEF) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE INDEX HEALTH ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO INDEX HEALTH FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US$100.
- EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Dispute Resolution and Arbitration.
- Generally. Except as described in Section 15.2 (Exceptions) and 15.3 (Opt-Out), you and Index Health agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND INDEX HEALTH ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 15 (Dispute Resolution and Arbitration) within 30 days after the date that you agree to these Terms by sending a letter to Index Health, Inc., Attention: Legal Department – Arbitration Opt-Out, 7901 4th Street N, Suite 300, St. Petersburg, FL 33702 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Index Health receives your Opt-Out Notice, this Section 15 (Dispute Resolution and Arbitration) will be void and any action arising out of these Terms will be resolved as set forth in Section 16.2 (Governing Law). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
- Arbitrator. This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the JAMS under the rules applicable to consumer disputes (collectively, “JAMS Rules”) as modified by these Terms. The JAMS Rules and filing forms are available online at www.jamsadr.com, by calling the JAMS at +1-800-352-5267 or by contacting Index Health.
- Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Index Health’s address for Notice is: Index Health, Inc., 7901 4th Street N, Suite 300, St. Petersburg, FL 33702. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Index Health may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Index Health will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if the Company has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the JAMS Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS Rules and the other party may seek reimbursement for any fees paid to JAMS.
- Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your residence unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the JAMS Rules in the county (or parish) of your residence. During the arbitration, the amount of any settlement offer made by you or Index Health must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
- Arbitration Relief. Except as provided in Section 15.8 (No Class Actions), the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Index Health before an arbitrator was selected, Index Health will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties , except (1) for judicial review expressly permitted by law or (2) if the arbitrator's award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator's application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
- No Class Actions. YOU AND INDEX HEALTH 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. Further, unless both you and Index Health agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. If Index Health makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Index Health’s address for Notice of Arbitration, in which case your account with Index Health will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- Enforceability. If Section 15.8 (No Class Actions) or the entirety of this Section 15 (Dispute Resolution and Arbitration) is found to be unenforceable, or if Index Health receives an Opt-Out Notice from you, then the entirety of this Section 15 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 16.2 (Governing Law) will govern any action arising out of or related to these Terms.
- Governing Law. These Terms are governed by the laws of the State of Delaware without regard to conflict of law principles. You and Index Health submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Palm Beach County, Florida for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Florida, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
- Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
- Contact Information. The Service is offered by Index Health, Inc., located at 7901 4th Street N, Suite 300, St. Petersburg, FL 33702. You may contact us by sending correspondence to that address or by emailing us at email@example.com.
- Notice to California Residents. If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
- Support. We will use commercially reasonable efforts to provide support for the Service during our normal business hours, excluding weekends and holidays, however, we make no warranties or guarantees about such support. In instances where we may offer support, the support may be subject to separate published policies.
- International Use. The Service is intended solely for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.