Terms of Sale

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

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

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

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

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

These Terms are an integral part of the Website Terms of Use that apply generally to the use of our Site, and our Privacy Policy, both of which are incorporated herein by reference. You should carefully review our Website Terms of Use and Privacy Policy before placing an order for products or services through this Site.

Order Acceptance and Cancellation. You agree that your order is an offer to buy, under these Terms, all products and services listed in your order. All orders must be accepted by us or we will not be obligated to sell the products or services to you. We may choose not to accept any orders in our sole discretion. After having received your order, we will send you a confirmation email with your order number and details of the items you have ordered. After placing your order, you will need to travel to a participating imaging center to obtain an intra-oral scan of your mouth so we can customize your mouthpiece. Please check our Site for the list of current imaging providers prior to placing your order to ensure there is a participating imaging provider in your area. You have the option to cancel your order at any time before both of the following things are true::

(i) you purchase your Proclaim Custom-Jet Oral Health System online, your payment has processed, and you have been sent a confirmation number;

AND

(ii) we have begun manufacturing your customer mouthpiece

You can cancel your order by contacting our Customer Care Team at 888-576-3756 or via email at customercare@proclaimhealth.com. We will refund to your original payment method. If you no longer have your original form of payment, please let customer care know and a check will be issued and mailed to you. If you financed your purchase, Affirm will refund your paid installments less any interest paid. If the products are returned in damaged condition or with missing parts, you may be charged an additional fee. We will process the refund due to you as soon as possible, but generally within ten business days.

Mouthpieces. Products purchased from us will be sold with a mouthpiece that is created based on the intra-oral scans provided by the participating imaging center. You have the option to purchase additional mouthpieces specific to your device through the Site and account with us and such mouthpieces shall also constitute “products” hereunder. We currently do not additional sell mouthpieces for resold devices or to individuals that were not the original purchaser. Mouthpieces may discolor if left in bright light or direct sun, so we suggest putting them away when not in use; however, discoloration of the mouthpiece is purely cosmetic and does not affect its functionality.

Prices and Payment Terms.

• All prices posted on this Site are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in your order confirmation email. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total and will be itemized in your shopping cart and in your order confirmation email. We are not responsible for pricing, typographical, or other errors in any offer by us and we reserve the right to cancel any orders arising from such errors.

• Terms of payment are within our sole discretion and, payment must be received by us before our acceptance of an order. We accept most major credit cards and other forms of payment as indicated in the checkout portal for all purchases. You represent and warrant that (i) the credit card information you supply to us is true, correct, and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.

Shipments; Delivery; Title and Risk of Loss.

• We will arrange for shipment of the products to you. Please check the individual product page for specific delivery options. You will pay all shipping and handling charges specified during the ordering process.

• Title and risk of loss pass to you upon delivery. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.

The Proclaim Promise; Returns and Refunds. We will accept a return of the products for a refund of your purchase price, provided such return is made within 30 days of delivery and provided such products are returned in their original condition and original product packaging. To return products, you must call 888-576-3756 or email our Returns Department at customercare@proclaimhealth.com to obtain a Return Merchandise Authorization (“RMA”) number before shipping your product. No returns of any type will be accepted without an RMA number. We will provide a pre-paid return shipping label to you for the return when we provide the RMA.

Refunds are processed within approximately ten business days after of our receipt of your products. If the products are returned in damaged condition or with missing parts, you may be charged an additional fee. Your refund will be credited back to the same payment method used to make the original purchase on the Site. If you no longer have your original form of payment, please let customer care know and a check will be issued and mailed to you. If you financed your purchase, Affirm will refund your paid installments less any interest paid.

LIMITED PRODUCT WARRANTY.

THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.

WE WARRANT THAT DURING THE WARRANTY PERIOD, THE PRODUCTS (BEING ANY DEVICES, HYDROSTATIONS, MOUTHPIECES, OR OTHER PRODUCTS) PURCHASED FROM THE SITE WILL BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP.

WE LIMIT THE DURATION AND REMEDIES OF ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE DURATION OF THIS LIMITED WARRANTY.

SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

OUR RESPONSIBILITY FOR DEFECTIVE PRODUCTS IS LIMITED TO REPAIR, REPLACEMENT OR REFUND AS SET FORTH IN THIS WARRANTY STATEMENT. NEITHER ANY PERFORMANCE OR OTHER CONDUCT, NOR ANY ORAL OR WRITTEN INFORMATION, STATEMENT OR ADVICE PROVIDED BY US OR ANY OF OUR AGENTS OR EMPLOYEES WILL CREATE A WARRANTY, OR IN ANY WAY INCREASE THE SCOPE OR DURATION OF THIS LIMITED WARRANTY.

• Who May Use This Warranty?

  This limited warranty extends only to the original purchaser of products from the Site. It does not extend to any subsequent or other owner or transferee of the product or any transferee.

• What Does This Warranty Cover?

  This limited warranty covers during the Warranty Period (as defined below) defects in materials and workmanship in products purchased from the Site.

• What Does This Warranty Not Cover?

  This limited warranty does not cover any damages due to:

  • transportation;

  • storage;

  • improper use;

  • failure to follow the product instructions or to perform any preventive cleaning or maintenance;

  • modifications;

  • combination or use with any products, materials, processes, systems or other matter not provided or authorized in writing Fresh Health;

  • unauthorized repair;

  • cosmetic issues that do not affect the function of the product;

  • discoloration of the mouthpiece for any reason, including exposure to bright light or sunlight;

  • normal wear and tear; or

  • external causes such as accidents, abuse, or other actions or events beyond our reasonable control.

• What is the Period of Coverage?

  This limited warranty starts on the initial date of delivery and lasts for one year the “Warranty Period”. The Warranty Period is not extended if we repair or replace a warranted product or re-perform a warranted service. We may change the availability of this limited warranty at our discretion, but any changes will not be retroactive.

• What Are Your Remedies Under This Warranty?

  With respect to any defective products during the Warranty Period, we will, in our sole discretion, either: (i) repair or replace such products (or the defective part) free of charge or (ii) refund the purchase price of such products. We will also pay for shipping and handling fees to return the repaired or replacement product to you if we elect to repair or replace the defective products.

• How Do You Obtain Warranty Service?

  To obtain warranty service, you must call 888-576-3756 or email our Customer Care Team at customercare@proclaimhealth.com during the Warranty Period to obtain an RMA number. No warranty service will be provided without an RMA number.

• Limitation of Liability

  THE REMEDIES DESCRIBED ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF THIS LIMITED WARRANTY. OUR LIABILITY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR THE DEFECTIVE PRODUCT OR SERVICE THAT YOU HAVE PURCHASED THROUGH THE SITE, NOR WILL WE UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY LOSS OF PRODUCTION, WORK, DATA, USE, BUSINESS, GOODWILL, REPUTATION, REVENUE OR PROFIT, ANY DIMINUTION IN VALUE, COSTS OF REPLACEMENT GOODS OR SERVICES, OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT.

  SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

Privacy. We respect your privacy and are committed to protecting it. Our Privacy Policy, www.proclaimhealth.com/policies/privacy-policy, governs the processing of all personal data collected from you in connection with your purchase of products or services through the Site.

Force Majeure. Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any of your obligations to make payments to us hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the reasonable control of the Impacted Party. If we experience a Force Majeure Event that may affect the fulfillment of your order or our performance hereunder, we will use reasonable efforts to give you notice within 60 days of the Force Majeure Event along with how long we expect such event to continue. We will resume the performance of our obligations as soon as reasonably practicable after the removal of the cause. In the event that our failure or delay remains uncured for a period of 60 consecutive days following written notice given by it under this Section, you may cancel your order or other agreement with us by providing written notice of such cancellation.

Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.

No Waivers. The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Fresh Health.

No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person other than you.

Notices.

Severability. If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.

Entire Agreement. Our order confirmation, these Terms, our Website Terms of Use and our Privacy Policy will be deemed the final and integrated agreement between you and us on the matters contained in these Terms.

Dispute Resolution

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

• Definitions.

  • “Dispute” means any claim or controversy between you and Fresh Health, including but not limited to any: (1) claims for relief or theories of liability, whether based in contract, tort, fraud, misrepresentation, statute or otherwise, or that relate to the existence of these Terms; (2) claims that arose before this or any Agreement; (3) claims that may arise in the future, including claims that may arise after the cancelation or expiration of these Terms; and (4) claims that are the subject of a putative class action in which no class has been certified. “Dispute” will be given the broadest possible meaning permitted by law. “Dispute” does not, however, include any issues arising from or relating to the arbitrability of any Disputes under this provision or the scope, validity, or enforceability of this arbitration provision.

  • For purposes of this Dispute Resolution section, “Fresh Health” means Fresh Health, Inc., and any of its predecessors, successors, assigns, parents, subsidiaries, affiliates, vendors and independent contractors, and each of their officers, directors, employees and agents.

• Informal Dispute Resolution Process.

  • Should you and Fresh Health (each a “party,” and collectively, the “parties”) have a Dispute, the parties agree that they will make a good faith effort to resolve it informally. Compliance with this informal dispute resolution process is a condition precedent to commencing any formal Dispute resolution proceeding in arbitration, small claims court, or otherwise.

  • The parties agree that any relevant limitations period and filing fee or other deadlines will be tolled while the parties engage in this informal Dispute resolution process.

  • In connection with any Dispute, you or Fresh Health must first send written notice to the other party, providing: your name and contact information (address, telephone number, and email address) if you are sending the notice, or Fresh Health’s contact information if Fresh Health is sending the notice; sufficient information for you or Fresh Health to identify any transaction at issue; and a detailed description of and explanation for (1) the Dispute; (2) the nature and basis of any claim; and (3) the nature, basis, and calculation of the relief sought. Your notice to Fresh Health must be personally signed by you (and your attorney if you are represented). Fresh Health’s notice to you will be personally signed by a Fresh Health representative (and Fresh Health’s attorney if we are represented). Your notice to Fresh Health must be sent by email info@Freshealth.com or by mail to Fresh Health, Inc., 745 W. Evelyn, Ave., Mountain View, CA 95120, Attention: Legal Department. Fresh Health’s notice to you will be sent to you based on the most recent contact information that you have provided to Fresh Health. You and Fresh Health agree to negotiate in good faith about the Dispute, including through an informal and individualized telephone settlement conference if Fresh Health requests one in connection with your notice (at which you agree to appear along with your attorney if you are represented) or if you request one in connection with Fresh Health’s notice (at which Fresh Health agrees to send a representative along with our attorney if we are represented). The parties agree to participate in good faith in this conference, which will be held at a time convenient for both parties, and throughout this informal process.

  • If the sufficiency of a notice or compliance with this informal Dispute resolution process is at issue, it may be decided by a court at either party’s election, and any formal Dispute resolution proceeding shall be stayed pending resolution of the issue. A court shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration.

  • This informal Dispute resolution process should lead to the resolution of the Dispute, but if for some reason it is not resolved within sixty (60) days after receipt of the information required above, which can be extended by agreement of the parties, you and Fresh Health agree to the further Dispute resolution provisions below.

• Mutual Arbitration Provision.

  • Any Dispute between you and Fresh Health that is not resolved as set forth above shall be resolved through binding individual arbitration or small claims court. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court. If you and Fresh Health are unable to resolve the Dispute through the mandatory informal Dispute resolution process, you and Fresh Health unconditionally agree that, except as set forth below, all Disputes between you and Fresh Health will be resolved entirely through binding individual arbitration, rather than in court, which include, without limitation, such Disputes arising out of or relating to any aspect of the relationship between you and Fresh Health, including your purchase of any products or services offered by or from Fresh Health through the Website, and all advertising, marketing, and communications.

  • The sole exceptions to the foregoing requirement to arbitrate are that: (1) either party may elect to have individual claims heard in small claims court if those claims otherwise qualify for small claims court and as long as the matter remains in such court and is not removed or appealed to a court of general jurisdiction and advances only on an individual (non-class, non-representative basis); and (2) each party may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

  • This Dispute Resolution section evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this Dispute Resolution section. You and Fresh Health agree that we intend that this Dispute Resolution section satisfies the “writing” requirement of the FAA.

  • This Mutual Arbitration provision shall survive termination of these Terms. By agreeing to these Terms, each party gives up its right to bring and prosecute any disputes in a court of law or before a jury except as expressly provided herein. You also give up your right to participate in or bring class actions or representative actions.

• Right to Enjoin Intellectual Property Misuse.

  • As set forth above, notwithstanding anything in this arbitration provision to the contrary, either you or Fresh Health may bring suit in court to enjoin infringement or otherwise enforce intellectual property rights.

• Procedures for Arbitration.

  • Arbitrations shall be heard and determined by a single arbitrator and be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (collectively the “AAA Rules”) as modified by the version of this arbitration provision that is in effect when notice of a Dispute is given. The AAA Rules can be obtained from the AAA by visiting its website (www.adr.org). If there is a conflict between this arbitration provision and the rest of these Terms, this arbitration provision will govern. If there is a conflict between this arbitration provision and the AAA Rules, this arbitration provision will govern. If the AAA is unavailable or unwilling to administer an arbitration in accordance with this arbitration provision, you and Fresh Health will work together in good faith to agree on (or if necessary petition a court of appropriate jurisdiction to appoint) an arbitration organization that will do so. Unless you and Fresh Health agree otherwise, any in-person arbitration hearing will take place in the county where you reside.

  • To begin an arbitration proceeding, after satisfying the condition precedent identified above, you or Fresh Health must (1) send a verified and personally signed demand for arbitration that describes (a) the nature and basis of the claims, and (b) the nature and basis of the relief sought, including a detailed calculation for it; (2) send the signed certification of completion of the process set forth in the Informal Dispute Resolution Process section; and (3) contact the AAA or the applicable court-appointed arbitration administrator and follow the appropriate procedures to commence the arbitration. If you or Fresh Health are represented by an attorney in connection with your or Fresh Health’s arbitration demand, you and Fresh Health agree that any arbitration demand must also be signed by your or our attorney. By signing the arbitration demand, the attorney certifies to the best of their information, knowledge, and belief, formed after a reasonable inquiry that: (1) the arbitration demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims or other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after reasonable opportunity for further investigation or discovery. The arbitrator shall be authorized to impose any sanctions available under Federal Rule of Civil Procedure 11. Your demand for arbitration must be sent to: Fresh Health, Inc., 745 W. Evelyn Ave., Mountain View, California 94041, Attention: Legal Department. Fresh Health’s demand for arbitration to you will be sent to you based on the most recent contact information that you have provided to Fresh Health.

  • Payment of all filing, administration and arbitrator fees will be governed by the applicable AAA Rules. The parties shall be responsible for their own attorneys’ fees and costs in arbitration, unless they are authorized by law, or the arbitrator determines that a claim was frivolous or brought for an improper purpose or in bad faith (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). In addition, the provisions of Federal Rule of Civil Procedure 68 (cost-shifting) shall apply and be enforced by the arbitrator after entry of an award.

  • The arbitration may be conducted by telephone, video, based on written submissions, or in-person in the county where you live or at another mutually agreed location. If requested, you shall personally appear (with your counsel if you are represented) or Fresh Health shall have a representative (with counsel if Fresh Health is represented) personally appear at any in-person, video, or telephonic hearing. Notwithstanding anything to the contrary, Fresh Health will pay all fees and costs that Fresh Health is required by law to pay.

  • The arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis. The arbitrator shall issue a reasoned written award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. The arbitration award shall be binding only among the parties to the arbitration and shall have no preclusive effect in any other arbitration or other proceeding involving a different party.

• Waiver of Jury Trials.

  • Disputes in arbitrations and small claims court are resolved without a jury trial. Whether in arbitration or court, you and Fresh Health waive the right to a jury trial to the maximum extent permitted by law.

  • As set forth above, Fresh Health and you each agree to bring any dispute on an individual basis only, and not on a class, consolidated, representative or collective or private attorney general basis. If for any reason a claim proceeds in court rather than in arbitration, Fresh Health and you each waive any right to a jury trial or to participate in a class action against the other to the maximum extent permitted by law.

  • A Dispute may not be consolidated with a claim by any person or entity that is not a party to the arbitration proceeding, and the arbitrator may not otherwise preside over any form of a class, consolidated, representative, collective, or private attorney general proceeding. If a court determines that any of the prohibitions on non-individualized relief; class, representative, and private attorney general claims; and consolidation are unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief), and all appeals from that decision have been exhausted (or the decision is otherwise final), then the parties agree that that particular claim or request for relief may proceed in court but shall be stayed pending arbitration of the remaining claims. Specifically, and notwithstanding anything to the contrary in this Dispute Resolution section, the arbitrator may not issue a “public injunction” and any such “public injunction,” if permitted, may be awarded only by a federal or state court. If either party is permitted to seek a “public injunction,” all other claims and prayers for relief must be adjudicated in arbitration first and any such prayer or claim for a “public injunction” in federal or state court stayed until the arbitration is completed, after which the federal or state court can adjudicate the party’s claim or prayer for “public injunctive relief.” In doing so, the federal or state court is bound under principles of claim or issue preclusion by the decision of the arbitrator. Notwithstanding any other provision of this Dispute Resolution section, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.

• Additional Procedures for Mass Arbitration.

  • If fifty (50) or more similar claims are asserted against Fresh Health by the same or coordinated counsel or are otherwise coordinated, you understand and agree that the resolution of your Dispute might be delayed. You also agree to the following staged process and application of the AAA Multiple Consumer Case Filing Fee Schedule and to address any issues related to compliance with the AAA filing requirements with a Procedural Arbitrator consistent with the AAA rules. Counsel for the claimants and counsel for Fresh Health shall each select twenty-five (25) cases (per side) to proceed first in individual arbitration proceedings as part of an initial staged bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a staged process. Each side may elect to have its cases for any given set of proceedings selected by it, by the AAA, or randomly. The parties agree that after completion of the first set of fifty (50) individual arbitration proceedings, they shall participate in a mediation session with a former state or federal court judge in an effort to resolve the remaining claims or to discuss potential ways to streamline the procedures for adjudicating the remaining claims. If the parties are unable to resolve the remaining cases after the conclusion of the initial fifty (50) proceedings, each side shall select another twenty-five (25) cases (per side) to proceed to individual arbitration proceedings as part of a second staged bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a staged bellwether process. Each side may elect to have its cases for any given set of proceedings selected by it, by the AAA, or randomly. The parties agree that after completion of the second set of fifty (50) individual arbitration proceedings, they shall participate in a second required mediation session with a former state or federal court judge in an effort to resolve the remaining claims or to discuss potential ways to streamline the procedures for adjudicating the remaining claims. If the parties are unable to resolve the remaining cases after the conclusion of the second set of fifty (50) proceedings, this staged process shall continue, consistent with the parameters set forth above, except that the parties agree that one hundred (100) cases shall be selected by the AAA or randomly to proceed individually in each subsequent set of staged proceedings subject to review and modification by agreement of the parties at any time. The remaining cases shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a staged process. The parties agree to meet and confer throughout this process to discuss issues, including but not limited to, increasing the number of cases to proceed in each set of staged proceedings, selecting claims to proceed in sets of proceedings as a percentage rather than a fixed number, resolving claims, or to otherwise modify the procedures to resolve the remaining claims as informed by the prior arbitration proceedings. In between staged processes beyond the first two sets, claimants’ counsel may elect to require Fresh Health to participate in another mediation session to discuss resolution of the remaining claims. A single arbitrator shall preside over each case. Each arbitrator shall aim to issue its award within 120 days after appointment. Only one case may be assigned to each arbitrator as part of each set within this staged process unless the parties agree otherwise. This staged process shall continue, consistent with the parameters identified above, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved. The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this mass arbitration process from the time of the first cases are selected for a process until the time your case is selected for a process, withdrawn, or otherwise resolved. A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands. Consistent with these additional procedures, the parties may elect to meet and confer, enter into a “cooling off” period, and/or mediate any or all of the remaining claims at any time or to discuss and agree to modifications to this process to ensure efficiency. Should Fresh Health initiate a claim against you that is part of a mass arbitration, Fresh Health agrees that such provisions shall apply.

• Governing Law and Forum.

  • These Terms will be governed by and construed in accordance with, and any Dispute will be resolved in accordance with the FAA and the laws of the State of California, without regard to its conflicts of law provisions. To the maximum extent permitted by law, to the extent any matter proceeds in court, except for small claims court, including any disputes over the enforceability of these Terms that are for a court to decide, you consent to the exclusive jurisdiction of the federal and state courts located in the Santa Clara County, California.

• Future Changes to Dispute Resolution Section.

  • Notwithstanding any provision to the contrary, we agree that if Fresh Health makes any future changes to this Dispute Resolution section (other than a change to the mailing or email address), you may reject any such change by sending us written notice within thirty (30) days of the change to the address provided above. This is not an opt-out of arbitration altogether. By rejecting any future change, you are agreeing that you will arbitrate any Dispute between you and Fresh Health in accordance with the language of this Dispute Resolution section.

• Survival.

  • This Dispute Resolution section shall survive the cancellation or expiration of the Terms.

For Further Information.

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

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