Terms of Service

Effective December 18, 2023

FIRST, AN IMPORTANT MESSAGE: PLEASE READ THESE TERMS OF USE (“Terms of Use”, or “Agreement”) CAREFULLY BEFORE USING THIS WEBSITE, AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS, INCLUDING, BUT NOT LIMITED TO, WAIVERS OF RIGHTS, LIMITATION OF LIABILITY, AND YOUR INDEMNITY TO US. THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN COURTS OR JURY TRIALS, AND LIMITS THE REMEDIES AVAILABLE IN THE EVENT OF A DISPUTE.

Both https://www.freshhealth.com and https://www.proclaimhealth.com (the “Websites”) are owned and controlled by Fresh Health, Inc. (“Fresh Health” or “we”). The information provided on this Website is for general informational and educational purposes only. Please read and review these Terms of Use carefully before accessing or using the Website.

Acceptance Of Agreement

Your access to and use of the Website is subject to the following terms of use (“Terms of Use”) and all applicable laws. By accessing and browsing the Website, you accept and agree to, without limitation or qualification, these Terms of Use and acknowledge that any other agreements between you and Fresh Health are superseded and of no force or effect with respect to your access and use of the Website.

Scope Of Use

Fresh Health maintains the Website for your personal information, education, and communication. Please feel free to browse the Website. You may download material displayed on the Website for non-commercial, personal use only, provided you maintain all copyright and other proprietary notices contained on the materials. You may not, however, distribute, modify, transmit, reuse, repost or use the content of the Website for public or commercial purposes, including the text and images, without Fresh Health's written permission. You understand that Fresh Health makes no representation that the information on the Website is appropriate or available for use in locations outside of the United States, and access to the Website from territories where the content of the Website may be illegal or inappropriate is prohibited. Those who choose to access the Website from other locations do so on their own initiative and risk and are responsible for compliance with applicable local laws.

No Medical Or Dental Advice

This Website may contain general information relating to various medical or dental conditions and their possible treatment. However, the Website does not provide medical or dental advice. Fresh Health products are available only in conjunction with medical or dental health professionals. Fresh Health is not engaged in rendering medical, dental, or similar professional services or advice, and the information provided on the Website is not intended to replace medical or dental advice offered by a health care provider. If you desire or need such services or advice, you should promptly consult a dentist or other professional health care provider. You should not use the information contained herein for diagnosing a health or dental problem or disease. You should always consult with a dentist or other health care professional for medical or dental advice -- or information about diagnosis and treatment.

Product Information

The product information provided on the Website is intended only for residents in the United States. The Website and its links may, however, contain information about products that may or may not be available in any particular country, territory, or region of the world (including the United States), may be available under different trademarks in different countries and, where applicable, may be approved or cleared by a government regulatory body for sale or use with different indications and restrictions in different countries. You should not construe anything on the Website as a promotion or solicitation for any product or service or for the use of any product or service that is not authorized by the laws and regulations of the country where you are located, including the United States. For specific information about particular products, you should refer to the full prescribing information as approved by the relevant governmental authority of the country where you are located. The information provided here is based on United States labeling and may not be appropriate outside of the United States.

Copyright Protection

You should assume that everything you see or read on the Website is copyrighted unless otherwise noted, and may not be used except as provided in these Terms of Use or the text on the Website without the written permission of Fresh Health. Fresh Health neither warrants nor represents that your use of materials displayed on the Website will not infringe the rights of third parties not owned by or affiliated with Fresh Health.

Trademarks

The registered and unregistered trademarks, trade names, logos, and service marks (collectively the “Trademarks”) displayed on the Website are the property of Fresh Health, its licensors, and others. Nothing contained on the Website should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademarks displayed on the Website without the written permission of Fresh Health or such third party that may own the Trademarks displayed on the Website. Your use of the Trademarks displayed on the Website, or any other content on the Website, except as provided in these Terms of Use, is strictly prohibited. You are also advised that Fresh Health will aggressively enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal indemnification.

You agree to indemnify, defend and hold harmless Fresh Health, and its officers, directors, employees, agents, suppliers, and third-party partners from and against all losses, expenses, damages, and costs, including reasonable attorneys' fees, resulting from any violation by you of these Terms of Use.

For New Jersey users, you would not be required to defend, indemnify or hold harmless Fresh Health and its respective officers, directors, employees, agents and suppliers from and against any liabilities, losses, investigations, inquiries, claims, suits, damages, costs or expenses arising out of Fresh Health’s own negligence

Disclaimer Of Warranty, Limitation Of Liability, And Time Limitation For Claims

YOU EXPRESSLY AGREE THAT USE OF THE SITE IS AT YOUR SOLE RISK.

For purposes of this section, “Fresh Health” includes not only Fresh Health, Inc., but also its parents, subsidiaries, affiliates, predecessors, successors and assigns, and each of their respective officers, directors, employees and agents.

FRESH HEALTH DOES NOT WARRANT THE WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH THE WEBSITE.

THE WEBSITE, IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THESE TERMS OF USE.

THE WEBSITE MAY OFFER HEALTH, HYGIENE, AND OTHER SUCH INFORMATION, BUT SUCH INFORMATION IS DESIGNED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY. THE INFORMATION CONTAINED ON THE WEBSITE DOES NOT AND IS NOT INTENDED TO CONVEY MEDICAL ADVICE AND DOES NOT CONSTITUTE THE PRACTICE OF MEDICINE. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT.

TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL FRESH HEALTH, BE LIABLE TO YOU FOR (i) ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER AND/OR DEVICE OR TECHNOLOGY FAILURE OR MALFUNCTION, (ii) ANY FORM OF INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR (iii) ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF ONE HUNDRED DOLLARS ($100), BASED ON ANY CAUSES OF ACTION ARISING OUT OF USE OF THE WEBSITE OR ANY ALLEGED FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, OR DELAY IN SERVICE, OPERATION, OR TRANSMISSION OF THE WEBSITES, OR ANY ALLEGED COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OF PROPERTY, AND/OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF OR POSTING OF ANY RECORD, CONTENT, OR TECHNOLOGY, PERTAINING TO OR ON THE WEBSITES. YOU AGREE THAT THIS LIMITATION OF LIABILITY APPLIES WHETHER SUCH ALLEGATIONS ARE FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR FALL UNDER ANY OTHER CAUSE OF ACTION, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF FRESH HEALTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. THIS LIMITATION OF LIABILITY PROVISION APPLIES TO NEW JERSEY RESIDENTS.

If you want to assert a dispute against Fresh Health, or Fresh Health wants to assert a dispute against you, then you or Fresh Health must commence the dispute by delivery of written notice as set forth in the dispute resolution section within one (1) year after the dispute arises, or it will be waived and time barred to the maximum extent permitted by law.

Prohibited Transmissions

Certain areas of the Website may enable you to access online forums and submit messages, or otherwise provide feedback to Fresh Health. Fresh Health does not endorse, and specifically disclaims, any responsibility or liability for any content in these forums. You may not post or transmit any unlawful, threatening, libelous, defamatory, obscene, indecent, inflammatory, pornographic, or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law. In addition, you are prohibited from posting or transmitting any information which (a) infringes the rights of others or violates their privacy or publicity rights, (b) is protected by copyright, trademark, or other proprietary rights, unless with the express written permission of the owner of such right, (c) contains a virus, bug, or other harmful code, (d) is connected to a cyberattack on Fresh Health or third parties, or (e) is used to unlawfully collude against another person in restraint of trade or competition. You shall be solely liable for any damages resulting from any infringement of copyright, trademark, or other proprietary rights, or any other harm resulting from your access to or use of the Website.

Privacy

Fresh Health respects the privacy of its Website users. Please refer to Fresh Health’s Privacy Policy.

User Submissions

Any “personally identifiable information” in electronic communications to the Website is governed by Fresh Health’s Privacy Policy. On the other hand, any communication or material you transmit to the Website by electronic mail or otherwise, including any data, questions, comments, suggestions, or the like is and will be treated as, non-confidential and non-proprietary. You understand that anything you transmit or post may be used by Fresh Health for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast, and posting. Furthermore, Fresh Health is free to use any ideas, concepts, know-how, processes, or techniques contained in any communication you send to the Website for any purpose whatsoever including, but not limited to, developing, manufacturing, marketing, and selling products and service using such ideas, concepts, know-how, processes, or techniques.

Third-Party Websites And Links

This Website may contain links or references to other sites maintained by third parties over whom Fresh Health has no control. Fresh Health has not reviewed all of the sites linked to the Website and is not responsible for the content of any off-site pages or any other sites linked to the Website. Such links are provided merely as a convenience. Similarly, this Website may be accessed from third-party links over which Fresh Health has no control. Fresh Health makes no warranties or representations of any kind as to the accuracy, currency, or completeness of any information contained in such sites and shall have no liability for any damages or injuries of any kind arising from such content or information. Inclusion of any third-party link does not imply an endorsement or recommendation by Fresh Health. Once you link to another site, please be sure to review the legal notice and privacy policy of the new site. It may be different from those governing the Website.

Void Where Prohibited

This Website and its contents are intended to comply with the laws and regulations in the United States. Although the information on this Website may be accessible to users outside of the United States, the information pertaining to Fresh Health products is intended for use only by residents of the United States. Other countries may have laws, regulatory requirements, and dental or medical practices that differ from those in the United States. Fresh Health reserves the right to limit provision of its products or services to any person, geographic region, or jurisdiction and/or to limit the quantities of any products or services we provide. Any offer for any product or service made on this Website is void where prohibited.

Modification Of Agreement

Fresh Health may, at any time, revise the Terms of Use governing the access and use of the Website. All revisions to these Terms of Use will be posted on the Website. You are bound by any such revisions and should, therefore, periodically review the Terms of Use posted to the Website.

Miscellaneous

If any provision of this Agreement is held to be unlawful, void, or unenforceable, then such provision shall be severable without affecting the enforceability of all remaining provisions. Fresh Health reserves the right to alter or delete materials from this Website at any time at its discretion.

Forward-Looking Statements

This Website may contain forward-looking statements about Fresh Health’s financial and operating performance, business plans and prospects, in-line products, and products in development that involve substantial risks and uncertainties. Actual results could differ materially from the expectations and projections outlined in those statements. Such risks and uncertainties include, among other things, the uncertainties inherent in pharmaceutical research and development; decisions by regulatory authorities regarding whether and when to approve drug applications and supplemental drug applications as well as their decisions regarding labeling and other matters that could affect the availability or commercial potential of Fresh Health products; competitive developments; the ability to successfully market both new and existing products; challenges to the validity and enforcement of Fresh Health’s patents; trends toward managed care and health care cost containment; governmental laws and regulations affecting health care, including without limitation regarding pharmaceutical product access, pricing and reimbursement; and general economic conditions, such as interest rate and foreign currency exchange rate fluctuations. Fresh Health assumes no obligation to update any forward-looking statements as a result of new information or future events or developments.

1. 1. Should you and Fresh Health (each a “party,” and collectively, the “parties”) have a Dispute, the parties agree that they will make a good faith effort to resolve it informally. Compliance with this informal dispute resolution process is a condition precedent to commencing any formal Dispute resolution proceeding in arbitration, small claims court, or otherwise.
2. 2. The parties agree that any relevant limitations period and filing fee or other deadlines will be tolled while the parties engage in this informal Dispute resolution process.
3. 3. In connection with any Dispute, you or Fresh Health must first send written notice to the other party, providing: your name and contact information (address, telephone number, and email address) if you are sending the notice, or Fresh Health’s contact information if Fresh Health is sending the notice; sufficient information for you or Fresh Health to identify any transaction at issue; and a detailed description of and explanation for (1) the Dispute; (2) the nature and basis of any claim; and (3) the nature, basis, and calculation of the relief sought. Your notice to Fresh Health must be personally signed by you (and your attorney if you are represented). Fresh Health’s notice to you will be personally signed by a Fresh Health representative (and Fresh Health’s attorney if we are represented). Your notice to Fresh Health must be sent by email customercare@proclaimhealth.com by mail to Fresh Health, Inc., 745 W. Evelyn, Ave., Mountain View, CA 94041, Attention: Legal Department. Fresh Health’s notice to you will be sent to you based on the most recent contact information that you have provided to Fresh Health. You and Fresh Health agree to negotiate in good faith about the Dispute, including through an informal and individualized telephone settlement conference if Fresh Health requests one in connection with your notice (at which you agree to appear along with your attorney if you are represented) or if you request one in connection with Fresh Health’s notice (at which Fresh Health agrees to send a representative along with our attorney if we are represented). The parties agree to participate in good faith in this conference, which will be held at a time convenient for both parties, and throughout this informal process.
4. 4. If the sufficiency of a notice or compliance with this informal Dispute resolution process is at issue, it may be decided by a court at either party’s election, and any formal Dispute resolution proceeding shall be stayed pending resolution of the issue. A court shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration.
5. 5. This informal Dispute resolution process should lead to the resolution of the Dispute, but if for some reason it is not resolved within sixty (60) days after receipt of the information required above, which can be extended by agreement of the parties, you and Fresh Health agree to the further Dispute resolution provisions below.

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.

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

Informal Dispute Resolution Process.

Mutual Arbitration Provision.

1. 1. Any Dispute between you and Fresh Health that is not resolved as set forth above shall be resolved through binding individual arbitration or small claims court. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court. If you and Fresh Health are unable to resolve the Dispute through the mandatory informal Dispute resolution process, you and Fresh Health unconditionally agree that, except as set forth below, all Disputes between you and Fresh Health will be resolved entirely through binding individual arbitration, rather than in court, which include, without limitation, such Disputes arising out of or relating to any aspect of the relationship between you and Fresh Health, your access or use of the Portal, Fresh Health Materials, or Services offered by or from Fresh Health through the Fresh Health websites, Portal, Fresh Health Materials, or Services, and Fresh Health’s advertising, marketing, and communications.
2. 2. The sole exceptions to the foregoing requirement to arbitrate are that: (1) either party may elect to have individual claims heard in small claims court if those claims otherwise qualify for small claims court and as long as the matter remains in such court and is not removed or appealed to a court of general jurisdiction and advances only on an individual (non-class, non-representative basis); and (2) each party may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
3. 3. This Dispute Resolution section evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this Dispute Resolution section. You and Fresh Health agree that we intend that this Dispute Resolution section satisfies the “writing” requirement of the FAA.
4. 4. This Mutual Arbitration provision shall survive termination of these Terms of Use. By agreeing to these Terms, each party gives up its right to bring and prosecute any disputes in a court of law or before a jury except as expressly provided herein. You also give up your right to participate in or bring class actions or representative actions.

Right to Enjoin Intellectual Property Misuse.

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

Procedures for Arbitration.

1. 1. Arbitrations shall be heard and determined by a single arbitrator and be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (collectively the “AAA Rules”) as modified by the version of this arbitration provision that is in effect when notice of a Dispute is given. The AAA Rules can be obtained from the AAA by visiting its website (www.adr.org). If there is a conflict between this arbitration provision and the rest of these Terms of Use, this arbitration provision will govern. If there is a conflict between this arbitration provision and the AAA Rules, this arbitration provision will govern. If the AAA is unavailable or unwilling to administer an arbitration in accordance with this arbitration provision, you and Fresh Health will work together in good faith to agree on (or if necessary petition a court of appropriate jurisdiction to appoint) an arbitration organization that will do so. Unless you and Fresh Health agree otherwise, any in-person arbitration hearing will take place in the county where you reside.
2. 2. To begin an arbitration proceeding, after satisfying the condition precedent identified above, you or Fresh Health must (1) send a verified and personally signed demand for arbitration that describes (a) the nature and basis of the claims, and (b) the nature and basis of the relief sought, including a detailed calculation for it; (2) send the signed certification of completion of the process set forth in the Informal Dispute Resolution Process section; and (3) contact the AAA or the applicable court-appointed arbitration administrator and follow the appropriate procedures to commence the arbitration. If you or Fresh Health are represented by an attorney in connection with your or Fresh Health’s arbitration demand, you and Fresh Health agree that any arbitration demand must also be signed by your or our attorney. By signing the arbitration demand, the attorney certifies to the best of their information, knowledge, and belief, formed after a reasonable inquiry that: (1) the arbitration demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims or other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after reasonable opportunity for further investigation or discovery. The arbitrator shall be authorized to impose any sanctions available under Federal Rule of Civil Procedure 11. Your demand for arbitration must be sent to: Fresh Health, Inc., 745 W. Evelyn Ave., Mountain View, California 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.
3. 3. Payment of all filing, administration and arbitrator fees will be governed by the applicable AAA Rules. The parties shall be responsible for their own attorneys’ fees and costs in arbitration, unless they are authorized by law, or the arbitrator determines that a claim was frivolous or brought for an improper purpose or in bad faith (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). In addition, the provisions of Federal Rule of Civil Procedure 68 (cost-shifting) shall apply and be enforced by the arbitrator after entry of an award.
4. 4. The arbitration may be conducted by telephone, video, based on written submissions, or in-person in the county where you live or at another mutually agreed location. If requested, you shall personally appear (with your counsel if you are represented) or Fresh Health shall have a representative (with counsel if Fresh Health is represented) personally appear at any in-person, video, or telephonic hearing. Notwithstanding anything to the contrary, Fresh Health will pay all fees and costs that Fresh Health is required by law to pay.
5. 5. The arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms of Use, and will determine any Dispute according to applicable law and facts based upon the record and no other basis. The arbitrator shall issue a reasoned written award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. The arbitration award shall be binding only among the parties to the arbitration and shall have no preclusive effect in any other arbitration or other proceeding involving a different party

Waiver of Jury Trials.

1. 1. Disputes in arbitrations and small claims court are resolved without a jury trial. Whether in arbitration or court, you and Fresh Health waive the right to a jury trial to the maximum extent permitted by law.
2. 2. As set forth above, Fresh Health and you each agree to bring any dispute on an individual basis only, and not on a class, consolidated, representative or collective or private attorney general basis. If for any reason a claim proceeds in court rather than in arbitration, Fresh Health and you each waive any right to a jury trial or to participate in a class action against the other to the maximum extent permitted by law.
3. 3. A Dispute may not be consolidated with a claim by any person or entity that is not a party to the arbitration proceeding, and the arbitrator may not otherwise preside over any form of a class, consolidated, representative, collective, or private attorney general proceeding. If a court determines that any of the prohibitions on non-individualized relief; class, representative, and private attorney general claims; and consolidation are unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief), and all appeals from that decision have been exhausted (or the decision is otherwise final), then the parties agree that that particular claim or request for relief may proceed in court but shall be stayed pending arbitration of the remaining claims. Specifically, and notwithstanding anything to the contrary in this Dispute Resolution section, the arbitrator may not issue a “public injunction” and any such “public injunction,” if permitted, may be awarded only by a federal or state court. If either party is permitted to seek a “public injunction,” all other claims and prayers for relief must be adjudicated in arbitration first and any such prayer or claim for a “public injunction” in federal or state court stayed until the arbitration is completed, after which the federal or state court can adjudicate the party’s claim or prayer for “public injunctive relief.” In doing so, the federal or state court is bound under principles of claim or issue preclusion by the decision of the arbitrator. Notwithstanding any other provision of this Dispute Resolution section, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.

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.

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

Future Changes to Dispute Resolution Section.

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

Survival.

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

For Further Information

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

Fresh Health Inc.
745 W Evelyn Ave
Mountain View, CA 94041
customercare@proclaimhealth.com

‍