Medely Terms of Service Agreement for Medical Facilities

Last Revised: [2-17-21]

Please read this Terms of Service Agreement (“TOS Agreement”) carefully. This TOS Agreement between Medely, Inc., a Delaware corporation, (“Medely”, “we”, “us”, or “our”) and the user (“you” or “User”) govern the use of: (i) our website, https://medely.com/ (our “Website”); (ii) the services and resources available or enabled via our Website (the “Services”); and (iii) all content, including, designs, graphics, text, illustrations, icons, multimedia, and other material that you see or read, and all related code (collectively, “Our Content”). Collectively the Website, Services, and Our Content are “Our Properties.”

This TOS Agreement applies to all users visiting, accessing, or using Our Properties. By clicking the “I accept” button, completing the registration process, or browsing our Website, you represent that: (1) you have read, understand, and agree to be bound by this TOS Agreement, (2) you are of legal age to form a binding contract with Medely, and (3) you have the authority to enter into the TOS Agreement personally or on behalf of the company (e.g. a Medical Facility) you named as the User, and to bind that company to the TOS Agreement. For clarity, the term “you” refers to the individual or legal entity, as applicable, identified as the User when you registered on the Website.

IF YOU DO NOT AGREE TO BE BOUND BY THIS TOS AGREEMENT, YOU MAY NOT ACCESS OR USE OUR PROPERTIES.

MEDELY DOES NOT EMPLOY, RECOMMEND, ENDORSE, OR GUARANTEE ANY PROFESSIONALS OR MEDICAL FACILITIES (AS DEFINED IN SECTION 2 (MEDELY IS A VENUE)). OUR PROPERTIES ARE A VENUE FOR USERS TO CONNECT ONLINE. EACH USER IS SOLELY RESPONSIBLE FOR INTERACTING WITH AND SELECTING ANOTHER USER, CONDUCTING ALL NECESSARY DUE DILIGENCE, AND COMPLYING WITH ALL APPLICABLE LAWS.

THE ARBITRATION AGREEMENT IN SECTION 16 (ARBITRATION) OF THIS TOS AGREEMENT CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED. IN PARTICULAR, THE ARBITRATION AGREEMENT WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.

ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF OUR PROPERTIES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS TOS AGREEMENT.

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”). Such Supplemental Terms will either be listed in this TOS Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the TOS Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. This TOS Agreement and any applicable Supplemental Terms are referred to herein as the “Agreement.”

Except as provided in Sections 17.8 and 19.7, below, the Agreement is subject to change by us in our sole discretion at any time, such changes will not apply to arbitrations pending at the time the change is made. Please regularly check our Website to view the then-current Agreement. When we make changes, we will make a new copy of the TOS Agreement available on the Website, make any new Supplemental Terms available on the affected Services on the Website, and update the ‘Last Revised’ date at the top of this TOS Agreement. Any changes to the Agreement will be effective immediately for new users of Our Properties and will be effective thirty (30) days after posting notice of such changes on our Website for existing Users (defined in Section 2 (Medely is a Venue)). We may require you to provide consent to the updated Agreement in a specified manner before we permit further use of Our Properties. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using Our Properties. Otherwise, your continued use of any of Our Properties constitutes your acceptance of such change(s).

1. Questions & Concerns

If you have questions, complaints, or claims with respect to Our Properties, please contact us at the contact information below. We will do our best to address your concerns. If you feel your concerns were not addressed completely, we invite you to let us know for further investigation.

Mail:

Medely, Inc.
Attn: Support
PO Box
2355 Westwood Blvd #412
Los Angeles, CA 90064
Email: [email protected]
Phone: (888) 858-7660

2. Medely is an Online Venue

Our Properties provide an online venue that connect users who are independent third-party providers of medical services (e.g. nurses and medical technicians) and are willing to fill short-term staffing positions (“Professionals”) with users who are independent third-parties that seek to contract with such Professionals for short-term staffing positions (“Medical Facilities”). Each Medical Facility’s request for Professional Services that is submitted on Our Properties is hereinafter referred to as a “Request.” For each Request, the Professional who accepted the Request shall perform, for the duration of the short-term staffing position, the medical services that the Medical Facility entered in its Request (“Professional Services”). Collectively, Professionals and Medical Facilities are our “Users.”

2.1 Staffing Requests. Each Request will be for one Professional (i.e. to retain two Professionals, two Requests must be submitted). Each Request must contain the nature and type of Professional Services required from the Professional (e.g. I need a medical technician for a heart surgery), including, for example, a description of the needed services, the start and end time of the position, the location where the Professional Services must be performed, whether the Request is for an independent contractor or temporary employee, and other information that may be necessary to complete the Request. Each Request that a Professional has accepted and has fully performed to the satisfaction of the Medical Facility is hereinafter referred to as a “Completed Request.” Each Request for Professional Services that occurs on a recurring or regular basis (e.g. every day or certain days every week) is hereinafter referred to as a “Recurring Request.”

2.2 Only a Venue. We only offer a method for Medical Facilities and Professionals to communicate and contract with one another, and a medium to exchange money between Professionals and Medical Facilities. You acknowledge and agree that by submitting or accepting a Request, you enter into an agreement directly with another User. You acknowledge and agree that Medely is not a party to such agreements. We disclaim all liability arising from or related to any such agreements between Medical Facilities and Professionals except as related to our obligation to process payments pursuant to the Agreement.

Medely does not:

Provide or Request Professional Services,
Have or take any responsibility or liability for any Professional Services provided to Medical Facilities by Professionals,
Take part in the interactions between Users,
Provide training, equipment, materials, or supervision to Professionals;
Have control over the manner, means, quality, timing, legality, or failure to provide Professional Services or any aspect whatsoever of any feedback or ratings provided by Users; or
Have control over the integrity, responsibility, or any actions of any Users.

2.3 Worker Classification. Medical Facilities are responsible for making their own decision regarding Professionals that they engage for Professional Services and should conduct their own investigations prior to engaging any Professionals. Although Professionals must undergo background checks, phone interviews and other verification processes in order to create an Account, we make no representations about and disclaim all liability associated with: (i) the suitability, reliability, and timeliness of the Professional Services provided by Professionals; and (ii) each Professional’s credentials, background, suitability, and reliability. Medical Facilities assume all liability for proper classification of Professionals as independent contractors or employees based on applicable legal guidelines. Medical Facilities further warrant and represent that all classification decisions are proper and made in accordance with applicable law.

This Agreement does not create a partnership or agency relationship between the Medical Facility and Medely. Medely does not have authority to enter into written or oral –whether implied or express –contracts on behalf of the Medical Facility. Medely does not, in any way, supervise, direct or control the Professionals’ work or services performed in any manner.

Medely does not set the Professional’s work hours and location of work, nor is Medely involved in determining the type or manner of compensation to be paid for any Request. Medely will not provide Professionals with training or any equipment, tools, labor or materials needed for a particular Request. Medely will not deduct any amount for withholding, unemployment, social security, or other taxes as it would in the case of an employee. Users will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority, in any state, with respect to the Professionals’ performance of the Professional Services. For contracts classified as independent contractor relationships, Medical Facilities may not require an exclusive relationship between the Professional and the Medical Facility. A Professional classified as an independent contractor is free at all times to perform Requests, be employed by otherwise engage with persons or businesses other than the Medical Facility, including any competitor of the Medical Facility. For contracts classified as employer-employee relationships, Medical Facilities will manage the Request through Medely’s payrolling program, where the Professional becomes an hourly employee of Medely’s staffing affiliate the Medical Facility and the Professional enter into appropriate additional agreements. Users agree to indemnify, hold harmless and defend Medely from any and all claims arising out of or related to their Request, including but not limited to claims that a Professional was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that a Professional was misclassified (including, but not limited to taxes, penalties, interest and attorney’s fees), any claim that Medely was an employer or joint employer of a Professional, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits. Any disputes related to the Professional Services must be resolved directly between Professionals and Medical Facilities.

3. Ownership

3.1 Our Properties. You agree that Medely and its affiliates, parents, subsidiaries, officers, employees, agents (“Affiliates”), licensors, partners, and service providers (“Suppliers”) own all rights, title, and interest in Our Properties (including the computer code, artwork, animations, methods of operation, moral rights, documentation, and features and functionality of our Website and software). Medely, its Affiliates, and Suppliers also reserve all rights not granted in the Agreement.

3.2 Copyright & Trademark. Our Properties are protected by copyright and other intellectual property laws throughout the world and all related graphics and logos on or in connection with Our Properties (the “Medely Marks”) are our trademarks and may not be used in connection with any third-party services or products without our prior written permission. Any other trademarks, service marks, and trade names that appear on Our Properties are the property of their respective owners.

3.3 Open Source Software. Portions of Our Properties may include software that is subject to various “open source” or “free” licenses (“Open Source Software”). Open Source Software is subject to the terms and conditions imposed by the licensors of that Open Source Software (“Open Source Terms”). You agree that your use of Open Source Software is subject to and governed by the applicable Open Source Terms. To the extent of any conflict between any Open Source Terms and the Agreement, the Open Source Terms shall prevail in connection with the related Open Source Software. Notwithstanding anything to the contrary herein, we do not make any warranty with respect to Open Source Software.

3.4 Your Content & License. All content that you upload, post, transmit, or otherwise make available (“Make Available”) through Our Properties is hereinafter referred to as “Your Content.” We do not claim ownership of Your Content. You hereby grant to Medely a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right (including any moral rights) and license to: (i) use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content that is submitted to Our Properties. You warrant that the holder of any worldwide intellectual property rights, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Medely, are responsible for all of Your Content that you Make Available on Our Properties.

3.5 Other User Content. Except with respect to Your Content, you agree that you have no right or title in or to any content that appears on Our Properties.

3.6 Feedback. You agree that submission of any ideas, suggestions, comments, and proposals to us (“Feedback”) is at your own risk and that we have no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit Feedback. You hereby grant to Medely a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner all Feedback, and to sublicense the foregoing rights, in connection with the operation, maintenance, and enhancement of Our Properties.

4. Using Our Properties

4.1 License. Subject to your compliance with the Agreement, we hereby grant you a limited, revocable, non-exclusive, non-transferable, non-assignable (except pursuant to Section 19.2 (Assignment)) license to access, browse, and view any of Our Properties made available to our Users, and to reproduce portions of Our Properties available to Users for the sole purpose of using the Services for your personal and internal business purposes.

4.2 Responsibility for Content. All Users of Our Properties, including you, are responsible for content those Users Make Available through Our Properties (“User Content”).

4.3 No Obligation to Pre-Screen Content. You acknowledge and agree that we have no obligation to pre-screen any content, including User Content, although we reserve the right, in our sole discretion, to pre-screen, refuse, and remove any User Content. You hereby provide your irrevocable consent to such monitoring, and you acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content. In the event that we pre-screen, refuse, or remove any User Content, you acknowledge that we do so for our benefit, not yours.

4.4 Exercise Caution. When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. You are solely responsible for your interactions with other Users of Our Properties. We nor our Affiliates or third party providers are responsible for the conduct, whether online or offline, of any User of our Services.

4.5 Electronic Communications. You and Medely use electronic means to communicate, whether you use the Services or send us emails, or whether Medely posts notices on the Services or communicates with you via email. For contractual purposes, you: (a) consent to receive communications, including notifications, from Medely in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Medely provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in a hard copy writing. The foregoing does not affect your non-waivable rights.

4.6 Updates. You understand that Our Properties are evolving. As a result, you acknowledge and agree that we may update Our Properties with or without notifying you. You may need to update third-party software from time to time in order to use Our Properties.

4.7 Services May Vary. You acknowledge and agree that the selection and availability of our Services may vary from device to device (because of technical limitations), and user-to-user.

4.8 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions:

You shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Our Properties or any portion of Our Properties, including the Website;
Except as expressly stated herein, you shall not copy, modify, reproduce, distribute, republish, download, display, post, repost, or transmit, in any forms or by any means, any part of Our Properties;
You shall not remove or destroy any copyright, trademark, service mark, or other proprietary rights notices or markings contained on or in Our Properties;
You shall not frame or use framing techniques to enclose any of Our Properties, including any trademark, logo, images, text, or page layout;
You shall not use any metatags or other “hidden text” using Medely Marks;
You shall not modify, translate, adapt, merge, or make derivative works of any part of Our Properties; and
You shall not use any manual or automated software, devices or other processes (including spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials).

Any future release, update or other addition to Our Properties shall be subject to the Agreement. Any unauthorized use of Our Properties terminates the licenses granted by Medely within the Agreement.

5. Registration

To access our Services, you must be a User who has a registered account on our Website (“Account”). Unregistered users (i.e. visitors) are only permitted to browse our Website in accordance with the Agreement, and may not access or use our Services.

5.1 Registration Process. A User who is a Medical Facility, may create an Account by visiting our Website and clicking the “Sign up” button, or by visiting https://medely.com/facility. You must enter the information requested, such as your first and last name, email address, company name, phone number, and password. Once you enter the requested information and agree to be bound by the Agreement, we will send an email to the email address you provided us to inform you that your Account is pending verification. Once your Account has been approved, you will receive another email from us.

5.2 Registration Data. In registering an Account on our Website, you:

Agree to provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and maintain and promptly update the Registration Data to keep it true, accurate, current, and complete;
Represent that you are of legal age to form a binding contract; and not a person barred from using Our Properties under the laws of the United States, your place of residence or any other applicable jurisdiction;
Are responsible for all activities that occur under your Account;
Agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of your Account;
Agree not to share your Account or password with anyone, and you agree to notify us immediately of any unauthorized use of your password or any other breach of security;
Agree not to create an Account using a false identity or information, or on behalf of someone other than yourself; and
Agree not to create any Account or use Our Properties if we have previously removed you, or we previously banned you from any of Our Properties.

Inaccurate Information. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your Account and refuse any and all current or future use of Our Properties (or any portion thereof).

5.3 Background Information on Professionals. Medely works with third party partners to perform identity verification, sex offender registry checks, global watch list registry check, national criminal records check, county criminal records checks on Professionals and drug screenings, and we receive information from them such as publicly available information about a Professional's criminal history.

5.4 Primary Source Verification. Medely works with third party partners or government entities to perform primary source verification on Professional's license/certification, and we receive information from them such as publicly available information about a Professional's license.

6. Fees and Payments

6.1 Types of Fees. Upon completion of a Request, the Medical Facility that made the Request will be charged: (1) a fee for the Professional’s performance of the Professional Services (“Professional Fee”); and (2) a fee for use of our Services (“Medely Fee”). Collectively, the Professional Fee and Medely Fee are the “Fees.” Each Medical Facility must pay the Fees as described in Section 7.2 (Medical Facility Payment Terms). All Fees are in US dollars unless otherwise specified herein or on the Services.

6.2 Amount of Fees. The Medical Facility that submitted the Request will be charged the amount of Fees listed on Our Properties (or if not listed on Our Properties, the amount communicated to the Medical Facility by Medely prior to submission of the Request). For a full list of our Fees please visit our “Fee Policy” page within your Account. Unless otherwise negotiated by the Professional, Medely calculates these Fees at the default pricing rates based on the local market rate for the type of service that the Professional is engaged to perform and based on input from the Professionals. After a Professional accepts a job, the pricing rate for that job cannot be adjusted. The Fees charged for each Request varies as follows:

Medely Fee. The Medely Fee varies depending on the geographic location the Professional Services are to be performed and Professional Services described in the Request.
Professional Fee. The Professional Fee for engaging a Professional as an independent contractor varies depending on the length of the engagement, the geographic location where the Professional Services are performed, and other factors, such as the Professional’s experience and other negotiated terms. If a Professional, as an independent contractor, works over eight consecutive hours, the Medical Facility shall pay a greater hourly rate to that Professional (the “Surge Rate”) as follows: (i) if the Professional works over eight (8) but less than twelve (12) consecutive hours, the Surge Rate shall be one and a half (1.5) times the hourly rate of that Professional for each consecutive hour the Professional works beyond eight (8) hours and less than twelve (12) hours; and (ii) if the Professional works over twelve (12) consecutive hours, the Surge Rate shall be two (2) times the hourly rate of that Professional for each consecutive hour the Professional works beyond twelve (12) hours. The Professional Fee for engaging a Professional as an employee will be determined based on the type of engagement and geographic location of the Professional.

6.3 Fees Subject to Change. You agree that we, in our sole discretion, may modify and increase the Fees at any time and for any reason. If we modify the Fees, the modified Fees will not apply to Requests that were submitted prior to the modification.

6.4 Our Payment Processor. We use Stripe Inc. (“Stripe”) as a third party service provider for payment services for independent contractor engagements, including to process Fees. For employee engagements, Medely will process the payment through a third party vendor who will issue the payment as a paycheck. Stripe will store any Payment Provider Account information entered on Our Properties and will charge such Payment Provider Accounts as outlined herein. By paying or receiving funds through Our Properties, you agree to be bound by the Stripe US Services Agreement available at: https://stripe.com/us/legal. If applicable, Stripe will report amounts paid to Professionals by filing Form 1099-NEC with the Internal Revenue Services, as required by law. For more information about the way we use and share your personal information with our third-party payment processor, please visit our Privacy Policy available at: https://medely.com/privacy-policy.

6.5 Cancellations. You may elect to cancel your request for Services at any time prior to the commencement of such Services, in which case you may be charged a cancellation fee on a Professional's behalf.

6.6 Refunds. Medely has no obligation to provide refunds or credits, but may grant them in extenuating circumstances in our sole discretion, for instance, to correct any errors we made. We do our best to correct errors we make and that we become aware of. If you believe Medely made an error in processing your payment(s), please contact us at the contact information listed in Section 1 (Questions & Concerns).

6.7 No Circumvention
A. Payment for Requests through Medely. Our value rests in our thriving venue of Professionals and Medical Facilities. Medely receives payment when a Medical Facility pays and a Professional receives that payment through the Medely platform. For 24 months from the time a User identifies or is identified by any party through the platform (“Non-Circumvention Period”), unless you pay the Opt-Out Fee in Section 6.7(B), you agree to use the platform as the exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (“Medely Relationship”). It is a violation of the Agreement during the Non-Circumvention Period (a) for a Medical Facility to knowingly offer a payment of Fees outside of the context of Our Properties for a Request found on our platform; or (b) for a Professional to knowingly accept a Request with the intention of delegating the performance of the Professional Services to another health-care professional. YOU SHALL IMMEDIATELY NOTIFY US IF ANOTHER USER REQUESTS THAT PAYMENT BE MADE THROUGH CHANNELS OTHER THAN THOSE PROVIDED OR SPECIFIED BY MEDELY.

B. Opting Out. Users may opt-out of the obligation in Section 6.7(A) with respect to each Medely Relationship if the User pays Medely an opt-out fee for each such relationship (“Opt-Out Fee”). The Opt-Out Fee is computed as follows: 18% of the anticipated annualized salary or wages for one year if the Medical Facility offers the Professional permanent employment or per-diem. Medely, in its sole discretion, may determine whether a User violated Section 6.7(A). In the event a violation is identified, Medely or its affiliates may (1) charge your Payment Provider the Opt-Out Fee (including interest), to the extent permitted by law, or may send you an invoice for the Opt-Out Fee (including interest), which the User shall pay within 30 days; (2) terminate your account and revoke your authorization to use the platform; and/or (3) charge you for all losses, costs and reasonable expenses (including reasonable attorney’s fees) related to investigating such breach and the collection of such fees.

To pay the Opt-Out Fee, you must request instructions by sending an email message to [email protected].

7. Additional Terms for Medical Facilities

7.1. For purposes of this Section 7, “you” refers only Medical Facilities (and no other Users). The following terms apply only to Medical Facilities:

To submit a Request on Our Properties, you must: (i) login to your Account, where Our Properties will display a calendar to you, (ii) select the date (or dates) you seek to hire a Professional to perform the Professional Services you have set forth in the Request, and (iii) submit the Request. Your Request is not accepted for posting on our Website until you receive a confirmation email from us containing a summary of the Request along with the Professional who signed up for your Request.
You acknowledge and agree that we do not and cannot guarantee that a Professional will be available to fulfill any of your Requests.
For Recurring Requests, we will automatically schedule Requests for future days indefinitely at the frequency you requested. You acknowledge and agree that we do not and cannot guarantee that the same Professional will be available for each Request in your Recurring Request.

7.2. Medical Facility Payment Terms.

Payment Method. When you create an Account, you must provide us with information from a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or automated clearing house account information (“Payment Provider” and “Payment Provider Account”). We may, in our sole discretion, waive the requirement in the previous sentence, in which case we will invoice you as described in Section 7.2.B (Invoicing). If you provide us with your Payment Provider Account, please note that your Payment Provider agreement governs your use of the designated Payment Provider Account. You must refer to that agreement to determine your rights and liabilities. By providing us with your Payment Provider Account, you agree that our third-party payment processor and we are authorized to immediately charge your Payment Provider Account for all charges due and payment to us and to the Professional in connection with your Account, and that no additional notice or consent is required. By submitting a Request, you represent that you are an authorized user of the Payment Provider Account provided. Please note that we cannot control, and disclaim all liability associated with, any fees that may be charged by your bank in relation to our collection of the Fees.
Invoicing. If you do not wish to provide us with your Payment Provider Account, you must notify us when you create your Account. We may, in our sole discretion, upon review of your credit history and financial history, enter our Payment Provider Account in your Account, and in turn, invoice you on a monthly basis for the Fees charged to that Account (“Monthly Invoice”). You agree to pay each Monthly Invoice within ten (10) days from either: (i) the date that we display the Monthly Invoice in your Account or, if earlier, (ii) the date you receive the Monthly Invoice from us.
Payment of Fees. We will provide you our fee schedule when you create an Account. For each Request you submitted, you will be charged the applicable Fees within twenty-four (24) hours of the Request being marked as a Completed Request on Our Properties. For clarity, if you submitted a Recurring Request was submitted, you will be asked to mark each date the Professional Services were performed as a Completed Request on Our Properties, and you will be charged the applicable Fees within twenty-four (24) hours of the end-time for each date that Professional Services were marked as a Completed Request on Our Properties. For example, if you submitted a Recurring Request for every Tuesday from 4PM-5PM for the next four weeks, and the Professional Services were performed to your satisfaction on the first Tuesday of those four weeks, you must mark the Request for that date as a Completed Request on Our Properties, and you will be charged by 5PM on the following Wednesday (i.e. twenty-four (24) hours from 5PM on Tuesday).
Payment Changes. You agree to immediately notify us of any change in your Payment Provider Account, including your billing address, used for payment hereunder. We reserve the right, at any time, to change our prices and billing methods, either immediately or upon posting on Our Properties or by email delivery to you.
Taxes. You will be liable for all transaction taxes due for the Professional Services provided by Professionals, other than taxes based on Medely’s income. Our charges are net of any applicable Sales Tax (defined below). If any Professional Services or our Services, or payments for Professional Services or our Services, under the Agreement are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Medely, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify us for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this Section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that we are permitted to pass to our Users, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.

8. Acceptable User Conduct.

When accessing or using Our Properties, you agree that you will not, under any circumstances:

Fail to pay the Fees for a Completed Request;
Fail to perform any Requests you accepted;
Misrepresent your identity or authority in any way;
Contact Users for any purpose other than as set forth in the Agreement;
Solicit any services other than Professional Services through Our Properties;
Interfere with other Users’ Requests, Feedback, User Content, or interfere with or undermine the working of Our Properties;
Make Available any unauthorized advertising; promotional materials, junk mail, or spam;
Make Available Your Content that is: (i) false, inaccurate, unlawful, defamatory, obscene; (ii) racially, ethnically, or otherwise objectionable; (iii) violates, or encourages any conduct that would violate the Agreement or any applicable laws or regulations or would give rise to civil liability; (iv) promotes hatred, harassment, or harm against and other Users; or (v) promotes illegal or harmful activities;
Breach or circumvent any laws, third party rights, or our systems, policies, or determinations of your Account status; or
Interfere with or damage Our Properties, including, without limitation through use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology.

9. Indemnification

You agree to indemnify and hold Medely, its Affiliates, and Suppliers (collectively, “Indemnified Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your use of, or inability to use, Our Properties; (b) your violation of the Agreement; (c) your violation of any rights of another party, including any Users; or (d) your violation of any applicable laws, rules or regulations. For the avoidance of doubt, this indemnification provision applies to any claims that a Professional was misclassified as an independent contractor, and any claims arising from or related to such misclassification. We reserve the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses. This provision does not require you to indemnify any of the Indemnified Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this Section 9 will survive any termination of your Account, the Agreement, or your access to Our Properties.

10. Disclaimer of Warranties for Our Properties.

10.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF OUR PROPERTIES IS AT YOUR SOLE RISK, AND OUR PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL ITS FAULTS, INCLUDING OMISSIONS AND ERRORS. MEDELY, ITS AFFILIATES, AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ARISING FROM USE OF OUR WEBSITE.

MEDELY, ITS AFFILIATES, AND ITS SUPPLIERS DO NOT MAKE ANY WARRANTY, REPRESENTATION OR CONDITION THAT OUR PROPERTIES WILL MEET YOUR REQUIREMENTS OR BE UP-TO-DATE, OR THAT YOUR USE OF OUR PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED FROM MEDELY, ITS AFFILIATES, ITS SUPPLIERS, OR THROUGH OUR PROPERTIES WILL CREATE ANY WARRANTY, GUARANTEE, OR REPRESENTATION NOT EXPRESSLY MADE HEREIN.

ANY CONTENT ACCESSED THROUGH OUR PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS OUR PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.

10.2 Your Use. MEDELY, ITS AFFILIATES, AND ITS SUPPLIERS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY, OR DAMAGE ARISING FROM OR IN CONNECTION WITH YOUR USE OF OUR PROPERTIES.

10.3 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT MEDELY, ITS AFFILIATES, AND ITS SUPPLIERS ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD US, OUR AFFILIATES AND OUR SUPPLIERS LIABLE, FOR THE CONDUCT OF USERS ON THE WEBSITE, AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH USERS RESTS ENTIRELY WITH YOU.

10.4 No Liability for User Interactions. MEDELY, ITS AFFILIATES, AND ITS SUPPLIERS DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USER; AND YOU ACKNOWLEDGE THAT MEDELY IS NOT ABLE TO CONTROL OR SUPERVISE YOUR INTERACTIONS OR TRANSACTIONS WITH OTHER USERS OF OUR PROPERTIES. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR SUCH INTERACTIONS OR TRANSACTIONS. MEDELY RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO (I) MONITOR ANY SUCH DISPUTE OR (II) UPON YOUR REQUEST, INTERVENE IN SUCH DISPUTE FOR THE PURPOSE OF RESOLVING THE DISPUTE, PROVIDED THAT MEDELY WILL NOT BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER ARISING FROM ANY MONITORING OR INTERVENTION OF SUCH ACTIVITIES.

11. Limitation of Liability

11.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL MEDELY, ITS AFFILIATES, OR ITS SUPPLIERS BE LIABLE FOR ANY: (i) LOSS OF PROFITS, REVENUE OR DATA; (ii) INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF IN CONNECTION WITH OUR PROPERTIES; (iii) DAMAGES OR COSTS DUE TO PROCUREMENT OF SUBSTITUTE SERVICES, OR (IV) LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE OF OUR PROPERTIES OR THAT ARE IN ANY WAY RELATED TO THE USERS INTRODUCED TO YOU BY OUR PROPERTIES, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR OUR PROPERTIES.

11.2 Quality of Professional Services. THE QUALITY OF PROFESSIONAL SERVICES REQUESTED THROUGH THE USE OF OUR PROPERTIES IS ENTIRELY THE RESPONSIBILITY OF THE PROFESSIONAL WHO PROVIDES SUCH PROFESSIONAL SERVICES. MEDICAL FACILITIES UNDERSTAND THAT BY USING THE SERVICES, THEY MAY BE EXPOSED TO SERVICES THAT ARE POTENTIALLY HARMFUL, UNSAFE, OR OTHERWISE OBJECTIONABLE, AND THAT USE OF THE PROFESSIONAL SERVICES, AND SUCH PROFESSIONALS, IS AT THEIR OWN RISK.

11.3 Cap on Liability. UNDER NO CIRCUMSTANCES WILL MEDELY, ITS AFFILIATES, OR ITS SUPPLIERS BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (1) THE TOTAL AMOUNT PAID TO MEDELY IN RELATION TO YOUR REQUESTS DURING THE TWELVE-MONTH PERIOD PRIOR TO THE ACT, OMISSION, OR OCCURRENCE, GIVING RISE TO SUCH LIABILITY, OR (2) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO ANY LIABILITY OF MEDELY OR ITS AFFILIATES FOR NEGLIGENCE, FRAUD OR FRAUDULENT MISREPRESENTATION.

11.4 Potential Restrictions. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

11.5 Basis of Bargain. The limitations of liability set forth above are fundamental elements of the basis of the bargain between you and us.

12. Copyright Infringement Claims

In accordance with the Digital Millennium Copyright Act of 1988, Medely promptly responds to claims of copyright infringement committed on Our Properties if such claims are reported to our designated copyright agent. If you believe your work has been posted on Our Properties in a way that constitutes copyright infringement, please deliver the following information to our designated copyright agent at the address below:

An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
A description of the copyrighted work that you claim has been infringed;
A description of the location on Our Properties of the material that you claim is infringing;
Your address, telephone number and email address;
written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Our designated copyright agent: [email protected]

13. Violations.

If we become aware of any possible violations, or if we, in our sole discretion, determine that you breached any portion of the Agreement or have otherwise demonstrated conduct inappropriate for Our Properties, we reserve the right to:

Investigate your behavior, including any possible violations;
Refer the matter to, and cooperate with any and all applicable legal authorities;
Disclose any information on Our Properties to comply with applicable laws, legal processes or governmental requests;
Deactivate your Account and cancel your Requests (or your acceptance of Requests) without issuing a refund or payment to you;
Notify Users you have interacted or transacted with;
Enforce the Agreement; and
Pursue any other action that we deem to be appropriate.

14. Term & Termination

14.1 Term. The Agreement shall commence on: (i) the date you accept the Agreement or (ii), if earlier, the date you first used any of Our Properties (the “Effective Date”), and will remain in full force and effect while you use Our Properties unless terminated earlier in accordance with the Agreement.

14.2 Termination. We reserve the right to block access to, suspend, or terminate your access to Our Properties or your Account, with or without notice, if we, in our sole discretion, determine that you are in breach of the Agreement.

14.3 Effect of Termination. In the event that we terminate your access to Our Properties and/or your ability to create an Account, we may remove your access from, bar your right to further use, and delete your password and Account on our Website. Termination of access to Our Properties shall terminate the Agreement. All provisions of the Agreement that should survive termination, shall survive, including ownership provisions, warranty disclaimers, and limitations of liability.

14.4 No Subsequent Registration. If we discontinue your ability to access Our Properties and/or create an Account, you agree that you shall not attempt to re-register with or access Our Properties, for example, by using a different username. In the event you violate this Section 14.4, we reserve the right, in our sole discretion, to immediately take any and all of the actions set forth herein without any notice or warning to you.

15. International Users

Our Properties can be accessed from countries around the world, but our Services are only available in the United States. If you are a User outside the United States, any references to Services in your country does not imply any intention to announce such Services in your country. Medely makes no representations that Our Properties are appropriate or available for use in locations outside the United States. Those who access or use Our Properties from other countries do so at their own volition and are responsible for compliance with local law.

16. No Third Party Beneficiaries

You acknowledge and agree that, except as otherwise expressly provided in the Agreement, with the sole exception of the arbitration provisions below, there shall be no third party beneficiaries in to the Agreement.

17. ARBITRATION

Please read the following arbitration agreement in this Section 17 (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Medely and limits the manner in which you can seek relief from us.

17.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of our Website, to any Services distributed through our Website, or to any aspect of your relationship with Medely, (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except for the exceptions expressly stated in the Agreement.

The following Disputes are not subject to this Arbitration Agreement: (1) Disputes that qualify for small claims court, so long as the Dispute remains in such court and advances only on an individual (non-class, non-representative) basis; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use of our Website; and (3) you or Medely may seek injunctive or other equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).

IF YOU AGREE TO ARBITRATION WITH MEDELY, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST MEDELY ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF, UNLESS OTHERWISE PERMITTED BY LAW. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST MEDELY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF PERMITTED BY APPLICABLE LAW BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THE AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.

17.2 Arbitration Rules and Forum. The Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) governs this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent California Corporate Agents, Inc. 16830 Ventura Blvd, Suite #306, Encino, CA 91436. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider or another alternative resolution provider based on the written agreement of the parties. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay the filing, administrative, hearing and/or other fees of JAMS, or another alternative dispute resolution provider, and you cannot obtain a waiver from JAMS, Medely will pay them for you. In addition, Medely will reimburse all such filing, administrative, hearing and/or other fees for claims totaling less than $10,000. Likewise, Medely will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous and Medely would otherwise be entitled to an award of such fees and costs had the matter been heard in court. You may choose to have the arbitration conducted by telephone or online videoconferencing service, based on written submissions, or in person in the county where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

17.3 Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and Medely. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties unless all parties (including Medely) consent in writing. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, and the TOS Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis to the same extent that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.

17.4 Waiver of Bench or Jury Trial. YOU AND MEDELY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Medely are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Arbitration Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

17.5 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.

17.6 Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

17.7 Survival of Arbitration

This Arbitration Agreement will survive the termination of your relationship with Medely.

17.8 Modification. Notwithstanding any provision in the Agreement to the contrary, you agree that if Medely makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) for which you have demanded arbitration or then pending in arbitration.

18. California Users & Residents

In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

19. General Provisions

19.1 Notice. Where we require that you provide an email address, you are responsible for providing us with your most current email address. If the last email address you provided to us is not valid, or for any reason is not capable of delivering to you any notices required or permitted by the Agreement, our dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to us at the physical address listed in Section 1 (Questions & Concerns). Such notice shall be deemed given when received by Medely by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail.

19.2 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

19.3 Force Majeure. Any delay or failure to perform by us or you (except the payment of money owed) will not be considered a breach of this Agreement if such delay or failure to perform is caused by causes outside our reasonable control, including Internet service interruptions, or governmental demands or requirements.

19.4 Exclusive Venue. To the extent the parties are permitted under the TOS Agreement to initiate litigation in a court, both you and Medely agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Los Angeles County, California.

19.5 Governing Law. The Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.

19.6 Export Control. You may not use, export, import, or transfer Our Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Our Properties, and any other applicable laws. In particular, but without limitation, Our Properties may not be exported or re-exported: (a) into any U.S. embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Our Properties, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a country that supports terrorists, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Our Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that our Services and/or technology are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer our Services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

19.7 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. Subject to any limitations set forth in Section 17 for Arbitration, the Agreement may be amended or superseded only be a mutually-executed writing. As used herein, “including” means “including without limitation”. The headings used in the Agreement are included only for purposes of convenience and shall not limit or otherwise affect the construction of the Agreement.

19.8 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

19.9 Severability. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of you and us, and the remaining portions shall remain in full force and effect.

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