Effective April 2, 2019
Please direct questions related to our privacy practices to firstname.lastname@example.org
Personal Information Collected
Maxwell Health collects various types of personal, demographic and non-personal information from users to help provide a superior user experience and to administer our Services.
For example, to utilize certain benefits-related features of the Platform, we may need to collect your home address or contact address, Social Security Number, dependent information (including name, address, social security number), contact phone number, email address, salary information (for salary dependent benefits), employment status (hire date, termination date, division, location, etc.), benefit plan information, as well as information around “Qualifying Life Events” that allow for benefit changes (such as marriage, birth of child, etc.).
In addition, if you download the Maxwell Health Mobile Application, and choose to utilize certain services, we may request access to your mobile device camera sensor data.
We also may require you to create a unique password and security PIN and question which we will retain on file for identification purposes.
In addition, we may collect or receive certain health-related information about you from time to time. In some instances, you may provide that information directly, such as when you fill out a form, send us a message, or connect a monitoring device which submits information about you electronically. In other instances, we may draw information from your employer or from a third party (such as an insurance company or broker).
Maxwell Health may periodically ask you to complete short surveys about your experiences (including questions about products and services) for research purposes and/or on behalf of third parties with which Maxwell Health works closely. You are free to respond or not. Your participation in these surveys is not required, and your refusal to do so will not impact your experience on the site.
In addition, if you choose to send Maxwell Health email inquiries or feedback or contact Customer Support, Maxwell Health will collect your personal information including your email address and phone number.
Automated Collection of Non-Personal Information
When you use the Platform, our servers automatically record standard information that your browser sends whenever you visit a website. These server logs may include information such as the page(s) you visited, your Internet Protocol address, Maxwell Health cookie information, browser type, browser language, and the date and time of your request.
When you install the Maxwell Health Mobile Application on your mobile device, your device will create a data store of application preferences, which may also contain certain Personal Information. When you access the Maxwell Health Mobile Application from a mobile device, we may also collect information about the type of mobile device you use, your device’s unique ID and the type of mobile Internet browser(s) you use. We may use this information to, among other things, administer the Services, help diagnose problems with our servers, analyze trends, and gather broad demographic information for aggregate use.
Maxwell Health uses this data to help diagnose problems with its servers, analyze trends, and administer Maxwell Health. These types of information do not generally identify or relate to you as an individual, and Maxwell Health does not seek to identify these types of information with you as an individual. Please understand, however, that others might seek to do so and we cannot guarantee that parties with whom we may share such information might not succeed in re-identifying or associating non-personal information with particular individuals.
Generally, Maxwell Health automatically collects usage information, such as the numbers and frequency of visitors to Maxwell Health and its components, number of links clicked within the Platform, etc. This data is only used in the aggregate. This type of collective data enables us to determine how users interact with the Maxwell Health service, so we can identify areas for improvement.
In order to improve the quality of your user experience as you repeatedly use the Platform, Maxwell Health may use a temporary session cookie to remember how you use Maxwell Health. This temporary history is not stored on your computer nor is it tied to personally identifiable information.
How We Use Personal Information
The information we gather is used for the following purposes:
Certain other functions of Maxwell Health create profile data (“Profile Data”), and are only available if an account has been created for you:
To keep you informed of the latest improvements and alerts relating to Maxwell Health, Maxwell Health may send you emails with information relevant to our Services. You will have the ability to opt out of receiving many of those emails, but Maxwell Health reserves the right to send specific administrative notices that are required by law, regulation, or as needed to service your account. You may also be given the option from time to time to receive certain message, updates or alerts via text messages by providing us with a mobile phone number and agreeing to receive such messages.
How We Share Personal Information
If you are enrolled and eligible for any of our Services, then we may disclose your personal information for the purposes of communicating eligibility and enrollment information to your employer and/or the applicable insurance broker or carrier, vendor, third-party plan administrator or other third party for the benefits or other services you are seeking.
If you choose to participate in any of our online wellness programs or our personal health concierge, you will likely be asked to provide us with personal information and/or health information. You will also likely provide personal data about yourself that we will track and analyze in order to provide personally relevant, health-related information and services. Please be assured that such information will be used only for the expressed purpose of each of the programs or services that you elect to participate in. We will not share this information with any party (either internally or externally) who does not have a need for such information in order to directly provide the programs or services that you choose to utilize.
We may disclose or report your personal information when we believe, in good faith, that the disclosure is required or permitted under law, for example, to cooperate with regulators or law enforcement authorities or to resolve consumer disputes. Without limiting the foregoing, we reserve the right to report to law enforcement agencies any activities that we, in good faith, believe to be unlawful.
We may also share your email address with your insurance broker(s) and/or carrier(s) and they may send you marketing messages about their respective goods or services.
In addition, if you opt in to certain services, we may also share your email address with other trusted brokers, carriers and service providers whose goods or services we believe may be of interest to you.
We employ other companies and people to perform tasks on our behalf and sometimes need to share your information with them to provide our products or services to you. In such cases we authorize the other company to use your information solely to assist in performing our services for you and not for any other purpose. We may also disclose your personal information to our affiliates where they owe us an enforceable obligation of confidentiality and are bound to use the personal information only as necessary to provide services to us.
Your insurance broker(s) and/or carrier(s) (pursuant to written agreements designed to limit the use and disclosure of your personally identifiable information) will be able to view your Profile Data.
Finally, we may disclose your information to a third party in connection with a corporate reorganization, merger, sale, joint venture, assignment, transfer or other disposition of all or any portion of our business, assets or stock, including in connection with any bankruptcy or similar proceedings.
Except as provided above in this section, we will not share your personally identifiable information or program activity with anyone without your prior consent.
Confidentiality and Security
Your Maxwell Health account information is protected by a password for your privacy and security. Maxwell Health requires users to adhere to good security practices in the selection and use of passwords, including: minimum length, complexity rules, history rules, and lockout. You need to work to protect against unauthorized access to your password and to your account by signing off once you have finished using a shared computer.
Maxwell Health has a policy to limit access to data and customer-benefit operating systems only to the individuals who are performing assignments related to their assigned customers and brokers. Our employees and contractors typically are required to sign confidentiality agreements that require that they keep such personal information confidential.
Maxwell Health has adopted commercially reasonable technical precautions taken to help keep your data secure. Member health information is encrypted at rest with 3DES encryption, and web traffic is protected using 256-bit SSL encryption.
Despite these efforts, please understand that no system is perfect or can guarantee that unauthorized access or theft of data might not occur.
Maxwell Health should not be used by individuals under thirteen (13) years of age. We do not intend to collect any personally identifiable information from such individuals unless provided to us by a parent or legal guardian. If you are under thirteen (13) years of age, you must be either an emancipated minor or have the consent of your parent or legal guardian to use Maxwell Health.
We are providing you this notice under Nevada state law. You may be placed on our internal Do Not Call List by emailing us at email@example.com, or writing us at 101 Tremont Street, Floor 11, Boston, MA 02108.
In addition to contacting us, Nevada residents can contact the Bureau of Consumer Protection, Office of the Nevada Attorney General, in writing at 555 E. Washington St., Suite 3900, Las Vegas, NV 89101; by calling (702)486-3132; or by emailing: BCPINFO@ag.state.nv.us.
Your Vermont Privacy Rights
Under Vermont law, we will not share any Personal Information we collect about Vermont residents with third parties, unless the law allows.
Under California Civil Code sections 1798.83-1798.84, also known as the “Shine the Light Law,” any of our users who are California residents are entitled to request and receive once a year, free of charge, a notice from us describing what categories of personal customer information (if any) we shared with third parties or corporate affiliates for their direct marketing purposes during the preceding calendar year. If applicable, the notice will identify the categories of information shared, the names and addresses of the third parties and affiliates with which information was shared. If you are a California resident and would like to request a copy of this notice, please submit a written request to the following address: 101 Tremont Street, Floor 11, Boston, MA 02108. In your request, please specify that you want a “California Privacy Rights Notice.” Please allow at least thirty days for a response.
Links to Other Websites
Our website may contain links to other websites. Please note that when you click on one of these links you are navigating to another website. Maxwell Health is not responsible for the information privacy practices or the content of such websites. We encourage you to read the privacy policies of these linked websites as their information privacy practices may differ from ours.
Reviewing or Updating Your Personal Information
You, your account administrator or your benefits broker can visit your membership profile page to view and, under certain circumstances, amend your Profile Data, including election information (subject to approval by the required administrator), at any time to update or correct your personal profile information or preferences.
Your Acceptance of These Terms
Terms of Service
Updated April 5, 2018
PLEASE READ THESE TERMS OF SERVICE (“TERMS”) CAREFULLY BEFORE USING THE MAXWELL HEALTH WEB APPLICATION (www.app.maxwellhealth.com) AND THE MAXWELL HEALTH MOBILE APPLICATION (collectively referred to as the “Platform”), OR ANY SERVICES OFFERED VIA THE PLATFORM (“SERVICES”).
These Terms constitute an agreement between you and DailyFeats, Inc. d/b/a Maxwell Health, a Delaware Corporation (“Maxwell Health,” or “we,” or “us”).
Notice Regarding Dispute Resolution: These Terms contain provisions that govern how claims you and Maxwell Health have against each other are resolved (see Section 19 below), including an obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit claims you have against us to binding arbitration, unless you opt-out in accordance with Section 19 below.
Please address questions related to these Terms to firstname.lastname@example.org.
The Platform, the Services, and any products described on the Platform are intended only for persons and companies in those states and jurisdictions within the United States where such products and services may legally be sold.
3. Maxwell Health’s Intellectual Property
The Platform, and all Platform materials including, but not limited to, the Maxwell Health logos, trademarks, designs, text, graphics, images, audio and video clips, software, interactive features and other works of authorship and other material, and the selection and arrangement thereof (the “content”) are copyrighted by Maxwell Health and are protected by United States and international intellectual property laws. Except as stated herein, none of the content may be copied, reproduced, or distributed in any form without the prior written permission of Maxwell Health. Permission is granted to display, copy, and download the content on the Platform for personal, non-commercial and informational use only provided that you may not (a) modify the content or (b) remove or alter any copyright or other proprietary notices contained in the content.
You may not use, frame or utilize framing techniques to enclose any Maxwell Health content (including the images found on the Platform, the content of any text or the layout/design of any page or form contained on a page) without Maxwell Health’s express written consent. Further, you may not use any metatags or any other “hidden text” utilizing a Maxwell Health name, trademark or product name without Maxwell Health’s express written consent.
4. United States Only
The Platform is intended for use only by residents of the United States. Maxwell Health makes no claims that the content may be lawfully viewed or downloaded outside of the United States. If you access the Platform from outside of the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.
6. Registration and Account Security of Maxwell Health Accounts
To access the Platform as an employee, you must first be listed by your employer, insurer or other plan administrator working with us (collectively “Admin”), and then create your own individual Maxwell Health account. To access the Platform as an employer, insurer, broker, plan administrator, or other provider of benefit-related services, you must first enter into a written agreement for use of the Platform.
7. User Conduct
Restrictions on use
No person with access to the Platform shall:
You acknowledge that we shall have the right (but not the obligation) in our sole discretion to pre-screen, refuse, or move any content that is submitted to the Platform. You agree that you must evaluate, and bear all risks associated with the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
You acknowledge that we shall have the right to terminate your access to the Platform for violations of any of these rules, including infringement of copyrights.
You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that accesses the Platform in a manner that sends more request messages to Maxwell Health’s servers in a given period of time than a human can reasonably produce in the same period by using a conventional web browser. You furthermore specifically agree not to use any automated method to alter the training values of decision results in order to unduly bias Maxwell Health’s machine learning algorithm in favor of or against specific results or groups of results.
You agree not to collect or harvest any personally identifiable information from or about others, including account information, and profile information, from the Platform, nor to use any community portions of the Platform for any commercial solicitation purposes other than as specifically permitted hereunder.
Your use of Maxwell Health and any content must comply with all applicable laws, regulations, and ordinances, including any laws regarding the export of data or software.
8. Use of Content on the Platform
In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of content you find on the Platform.
The content on the Platform is provided to you “as is” for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited in any manner not intended by the normal functionality of the Maxwell Health Service or otherwise as prohibited under these Terms.
All visual representation of benefits is provided for ease of web-enabled viewing and is not intended to replace the insurance policy and certificate of insurance. Once an insurance policy is issued to your employer, a certificate of insurance will be available to explain your coverage in detail. Only the insurance policy issued to the policyholder (your employer) can fully describe all of the provisions, terms, conditions, limitations, and exclusions of your insurance coverage. In the event of any difference between the representation of benefits provided earlier and the insurance policy, the terms of the insurance policy will apply. Maxwell specifically disclaims any and all liability for any differences between any representation of benefits on the Platform and the actual policy benefits.
9. The Platform Does Not Provide Medical Advice
Any content on the Platform, such as text, graphics, images and other material contained on the Platform is furnished to you for informational and enrollment purposes only. Unless as otherwise disclosed to you, any content that is accessible through the Platform or from your insurance broker(s) and/or carrier(s) is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the Platform.
If you think you may have a medical emergency, call your doctor or 911 immediately. Reliance on any information provided by Maxwell Health, Maxwell Health employees, others appearing on the Platform at the invitation of Maxwell Health, or other visitors to the Platform is solely at your own risk.
10. Additional Terms Relating to Content
When you delete content, you understand that your deleted content may persist in backup copies for a reasonable period of time.
Maxwell Health reserves the right to take any of the following actions:
Maxwell Health has no liability or responsibility to users of the Platform or any other person or entity for performance or nonperformance of the Platform or any Services offered through the Platform.
Maxwell Health may terminate your account and your access to the Platform if Maxwell Health determines in its sole discretion that you have breached these Terms. Upon termination of your account, your right to use the Maxwell Health Services and access the Platform and any content will immediately cease. All provisions of these Terms, which by their nature should survive termination, shall survive termination, including without limitation ownership provisions, warranty disclaimers, indemnifications and limitations of liability.
11. Digital Millennium Copyright Act
If you are a copyright owner or an agent thereof and believe that any content on the Platform infringes upon your copyrights, you can contact us at email@example.com. Any notice should include the following:
If a notice of copyright infringement has been filed against material posted by you, you may make a counter-notification with our Designated Agent listed above, provided that such counter-notification must be in writing and contain the following requisite information:
If we receive a valid counter-notification, we may reinstate the removed or disabled material in accordance with the Digital Millennium Copyright Act.
We may update these Terms from time to time. In the event of any update, you will be prompted to review the amended Terms on the Maxwell Health Web Application, and we will require you to affirmatively re-accept the new Terms before re-accessing the Maxwell Health Web Application for the first time after a change has been adopted. If you have provided us with your email address, we may also notify you of material changes to these Terms by sending an email to the email address you most recently provided to us. If you do not agree to the new Terms, you should stop using the Platform. Continued use after the new Terms have taken effect constitutes acceptance of the new Terms.
We also may modify or terminate our offering of the Platform and/or any of the Services available through the Platform from time to time, for any reason, and without notice and without liability to you. We may also impose limits on certain features and Services or restrict your access to parts or all of the Maxwell Health services at any time, with or without notice or liability.
13. Warranty Disclaimer
You acknowledge that Maxwell Health has no control over, and no duty to take any action regarding: which users gain access to the Platform; what content you access via the Platform; what effects the content may have on you; how you may interpret or use the content; or what actions you may take as a result of having been exposed to the content. You release Maxwell Health from all liability for your having acquired or not acquired content through the Platform. The Platform may contain, or direct you to sites containing, information that some people may find offensive or inappropriate. Maxwell Health makes no representations concerning any content contained in or accessed through the Platform, and Maxwell Health will not be responsible or liable for the accuracy, copyright compliance, legality or decency of content contained in or accessed through the Platform.
THE SERVICES, CONTENT, PLATFORM, AND ANY SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT.
YOU AGREE THAT YOUR USE OF THE PLATFORM SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, MAXWELL HEALTH, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE PLATFORM AND YOUR USE THEREOF. MAXWELL HEALTH MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE PLATFORM’S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THE PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE PLATFORM, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE PLATFORM, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE PLATFORM BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE PLATFORM.
MAXWELL HEALTH DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE PLATFORM OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND MAXWELL HEALTH WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. FURTHER, WITHOUT LIMITING THE FOREGOING, MAXWELL HEALTH MAKES NO REPRESENTATION OR WARRANTY WITH REGARD TO THE PLATFORM, PRODUCTS OR SERVICES OBTAINED THROUGH ANY PROVIDER, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THAT ANY SUCH PRODUCT OR SERVICE WILL MEET YOUR REQUIREMENTS, THAT ANY SUCH PRODUCT OR SERVICE WILL BE TIMELY, FREE OF ERRORS OR WITHOUT DEFECTS, OR PROVIDED ON AN UNINTERRUPTED BASIS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF YOU RESIDE IN SUCH A JURISDICTION, THE ABOVE LIMITATIONS SHALL APPLY TO YOU TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
14. Limitation of Liability
IN NO EVENT SHALL MAXWELL HEALTH, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY (I) INDIRECT, INCIDENTAL, SPECIAL PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE PLATFORM; (C) UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE PLATFORM, (E) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE PLATFORM BY ANY THIRD PARTY, OR (F) ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY; OR (II) DIRECT DAMAGES IN EXCESS OF $100; WHETHER OR NOT MAXWELL HEALTH IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES; THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
YOU SPECIFICALLY ACKNOWLEDGE THAT MAXWELL HEALTH SHALL NOT BE LIABLE FOR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
Maxwell Health does not assume responsibility or liability for injury caused by the actions, products, or services of any third party (such as insurance broker(s) or carrier(s), and will not be liable or responsible for those performances, guarantees, warranties and representations, if any, offered by any third party service provider.
You agree to defend, indemnify and hold harmless Maxwell Health, its officers, directors, employees, agents, affiliates, parents, and subsidiaries from and against any and all third-party claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your violation of any term of these Terms; or (ii) your violation of any third party right, including without limitation any copyright. This defense and indemnification obligation will survive these Terms and your use of the Platform.
16. Ability to Accept Terms of Service
You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms. In any case, you affirm that you are over the age of 13, as the Platform is not intended for children under the age of 13. If you are under 13 years of age, please do not use the Platform.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Maxwell Health without restriction.
No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Maxwell Health’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind Maxwell Health in any respect whatsoever.
These Terms, and any disputes relating hereto, shall be governed by the internal laws of the Commonwealth of Massachusetts applicable to contracts made and performed within Massachusetts without regard to principles of conflict of laws.
18. DISPUTES; ARBITRATION
Initial Dispute Resolution
We are available by email at firstname.lastname@example.org to address any concerns you may have regarding your use of the Platform or Services. Most concerns may be quickly resolved in this manner. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
Terms of Service and Binding Arbitration Agreement
If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to THE PARAGRAPH above, then either party may initiate binding arbitration. All claims arising out of or relating to THESE TERMS (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the portal or Services shall be finally settled by binding arbitration administered by the American Arbitration Association (the “AAA”) on a non-confidential basis in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the AAA, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The procedures and rules of the Federal Arbitration Act shall exclusively govern the interpretation and enforcement of this arbitration provision.
The AAA’s rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at 1.800.778.7879. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, we will pay the additional cost. A request for payment of fees should be submitted to AAA along with your form for initiating the arbitration, and we will make arrangements to pay all necessary fees directly to AAA.
The parties understand that, absent this mandatory provision, they would have the right to sue in court. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
Class Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
30 Day Right to Opt Out
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in the preceding paragraphs by sending written notice of your decision to opt-out to the following address: 101 Tremont St, Floor 11, Boston, MA 02108. The notice must be sent within thirty (30) days of creation of an account on the Platform, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, Maxwell Health also will not be bound by them.
Exclusive Venue for Litigation
Solely to the extent the arbitration provisions set forth above do not apply, or for purposes of either party enforcing an award granted to it pursuant to arbitration, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Boston, Massachusetts. The parties expressly consent to exclusive jurisdiction in Boston, Massachusetts for any litigation. The parties irrevocably consent to personal jurisdiction in Boston, Massachusetts for any litigation and hereby waive, for all purposes, their right to challenge the lack of personal jurisdiction of the courts in Boston, Massachusetts over any litigation arising in connection with, out of, or as a result of (a) these Terms or the Platform or Services, and (b) any acts or omissions of Maxwell Health in connection with these Terms or Platform or Services.