CircleCare Terms of Service

Last modified: August 8, 2016

CircleCare, Inc. (“CircleCare” or “we”) provides an online service to help families organize, store, and manage information related to your care or the care of your children, parents, and loved ones (the “CircleCare Services”) through our mobile app for the iOS or Android operating systems (collectively, the “CircleCare App”). Please read carefully the following Terms of Service (“Terms”) and our Privacy Policy, which is incorporated by reference into these Terms. These Terms govern your access to and use of the CircleCare Services and Collective Content (defined below) via the Site, and constitute a binding legal agreement between you and CircleCare.

You acknowledge and agree that, by accessing or using the CircleCare Services, or by downloading, uploading, or posting any content from or on the App or through the CircleCare Services, you are indicating that you have read, and that you understand and agree to be bound by, these Terms. If you do not agree to these Terms, then you have no right to access or use the App or CircleCare Services.

NO MEDICAL ADVICE

We do not provide any medical or pharmaceutical advice. We are not health care providers. As a result, the CircleCare Services are not intended to provide medical or pharmaceutical information or replace the advice of a healthcare professional. We only provide technology for family members assist each other managing their health & wellbeings. What we do is provide a way for you to take control and manage health care data. While we are not a covered entity under the Health Insurance Portability and Accountability Act (HIPAA), we take both the protection of your private health information and your ability to control and access such information very seriously, and will only use and disclose your information in accordance with our Privacy Policy.

PROFILES

When you register with us for access to the CircleCare Services and successfully complete the account registration process you will become a “Member” of the CircleCare Service. As a Member, you will have the opportunity to create one or more care profiles (“Profiles”) and to add information, data, and images to your Profile(s) (“Profile Content”). A Profile may relate to you or it may relate to your child, parent, or other person you are caring for. Because of the sensitive and private nature of your health care and the health care of those loved ones on whose behalf you may be creating a Profile, we recommend that you protect the private and sensitive information contained within your Profile(s) . All Members are responsible for monitoring the Profile Content uploaded or added to their Profiles, whether uploaded by the Member, by a Caregiver, or by other third parties.

If you are creating a profile on behalf of another person, by accepting these terms you attest that you are authorized by that person to create a profile on their behalf. To the extent you take action on behalf of the person you are caring for, you also attest that you have valid legal authority to take that action on their behalf.

Please note that you, and not CircleCare, are responsible for maintaining and protecting all Profile Content. CircleCare will not be liable to you for any loss or corruption of your Profile Content, or for any costs or expenses associated with backing up or restoring any of your Profile Content.

ADDITIONAL TERMS

Certain areas of the App (and your access to or use of certain aspects of the CircleCare Services) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions in order to obtain access to or use of that Site area or CircleCare Service. Any additional terms will be made available to you at the time you access that applicable Site area or CircleCare Service. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site or particular CircleCare Services, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site or particular CircleCare Service, as applicable.

MODIFICATION

CircleCare reserves the right, at its sole discretion, to modify, discontinue, or terminate the CircleCare Services or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modified Terms and alert you to the modified Terms on the Site or otherwise provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the CircleCare Services after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site and CircleCare Services.

ELIGIBILITY

The Site and CircleCare Services are intended solely for persons who are 13 or older. Any access to or use of the CircleCare Services by anyone under 13 is expressly prohibited. By accessing or using the CircleCare Services you represent and warrant that you are 13 or older.

ACCOUNT REGISTRATION

In order to access the CircleCare Services, including to (i) create and manage a Profile and (ii) post any Profile Content through the CircleCare Services, you must register to create an account (“Account”) and become a Member. You agree to provide accurate, current, and complete information during the registration process and to update such information to keep it accurate, current, and complete. CircleCare reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current, or incomplete. You will be asked to create a password when you create your Account. CircleCare does not have access to your passwords and if you forget your password you will be asked to create a new one. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify CircleCare if you become aware of any unauthorized use of your Account.

PRIVACY

See CircleCare’s Privacy Policy for information and notices concerning CircleCare’s collection and use of your personal information and the Profile Content you submit.

LICENSE GRANTED BY MEMBER

By making available any Profile Content on or through the CircleCare Services, you hereby grant to CircleCare a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid up right and license to access, use, view, copy, adapt, reformat, and download, such Profile Content only on, through or by means of the CircleCare Services and for the limited purpose of making such Profile Content available to you and any Caregivers with whom you choose to share access to one or more of your Profiles via the CircleCare Services and as otherwise set forth in our Privacy Policy. In the event you do elect to make one or more Profile(s) and their corresponding Profile Content available to one or more Caregivers, you further grant CircleCare a right to sublicense the Profile Content to such Caregiver to allow access to and use of the same as permitted by the CircleCare Services. ALTHOUGH ANY CAREGIVER IS SUBJECT TO THESE TERMS AS A MEMBER, WE CANNOT CONTROL ANY USE OF PROFILE CONTENT BY ANY CAREGIVER AND YOU ARE SOLELY RESPONSIBLE FOR THE SAME AND ANY LIABILITY FOR SUCH ACCESS.

You acknowledge and agree that you are solely responsible for all Profile Content that you make available through the CircleCare Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Profile Content that you make available through the CircleCare Services or you have all rights, licenses, consents and releases from your loved one that are necessary to grant to CircleCare the rights in such Profile Content, as contemplated under these Terms, including the provision to CircleCare of Personal Information (as defined in the CircleCare Privacy Policy) submitted to us as part of a Profile; and (ii) neither the Profile Content nor your posting, uploading, publication, submission, or transmittal of the Profile Content or CircleCare’s use of the Profile Content (or any portion thereof) on, through or by means of the CircleCare Services will infringe, misappropriate, or violate a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

LICENSES GRANTED BY CircleCare TO CircleCare CONTENT AND MEMBER CONTENT

Subject to your compliance with the terms and conditions of these Terms, CircleCare grants you a limited, non-exclusive, non-transferable license to view, download, and print any CircleCare Content solely for your personal and non-commercial purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, download, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site, CircleCare Services or CircleCare Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by CircleCare or its licensors, except for the licenses and rights expressly granted in these Terms. Any misuse of the Site, CircleCare Services or CircleCare Content available via the same may be pursued by CircleCare to the fullest extent permitted by law.

In addition, if you are invited as a Caregiver to receive access to one or more Profile(s) by another Member(s) subject to your compliance with the terms and conditions of these Terms, CircleCare grants you a limited, non-exclusive, non-transferable license to access and use the Profile Content to which you are granted access by another Member. You have no right to sublicense the license rights granted in this section. Unless otherwise agreed between you and the Member granting you access to such Profile Content, all Profile Content is deemed to be confidential and you may not publicly disclose, display, distribute, transmit, stream, broadcast or otherwise use or exploit any Profile Content for any purpose other than the lawful provision and assistance of the management of the personal health care of the individual to whom the Profile Content relates.

OTHER SERVICES

From time to time, we may present you with offers or promotions we believe to be helpful or relevant, which may be from us at CircleCare or they may be from third parties. Certain of these offers may require you to share or enter additional information about you or your loved one. You are responsible for managing the information you choose to share. CircleCare is providing the platform through which these services can be coordinated and managed, and although we do our best to select the highest quality third party partners and providers, we are not responsible for the choices you make to share your private information, or the accuracy or quality of such third party services. In that instance the CircleCare Services are only a venue for you to access those third party services and CircleCare is not a party to, nor are we otherwise involved in any transactions entered into via or facilitated by the CircleCare Services. Furthermore, CircleCare is not liable or responsible for any dispute that arises between you and any third party.

In addition, CircleCare will do its best to enable you to use the CircleCare Service as a singular console through which these third party services may be managed, including facilitating the delivery and receipt of communications between you and your healthcare providers, from pharmacies to physician’s offices. We cannot guarantee that we can or will be able to maintain our relationship with any particular third party. We also are not responsible for any of the service levels, availability, or quality of any such connections with third parties, and disclaim any responsibility for errors or miscommunication with the same. To the extent providing other services requires actions on your behalf, you consent to appointing CircleCare as your agent as reasonably needed to facilitate those services.

FEEDBACK

We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the CircleCare Services (“Feedback”). You may submit Feedback by emailing us at support@MyCircleCare.com, or via the Help and Feedback link on the Site. You acknowledge and agree that if you submit any Feedback to us, you hereby grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable, and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon, and otherwise exploit the Feedback for any purpose without any compensation to you of any kind.

GENERAL PROHIBITIONS

You agree not to do any of the following:

  • Impersonate or misrepresent your affiliation with any person or entity;
  • Violate any applicable law or regulation;
  • Collect or store any personally identifiable information, including any Profile Content and/or Personal Information (as defined in the Privacy Policy) from the CircleCare Services from other Members of the CircleCare Services without their express permission;
  • Post, upload, publish, submit, or transmit any Profile Content that: (i) infringes, misappropriates, or violates a third party’s privacy or any rights of publicity, or any patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading, or deceptive; (iv) is defamatory, obscene, pornographic, vulgar, or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
  • Use, display, mirror, or frame the Site, or any individual element within the CircleCare Services or CircleCare Content, or CircleCare’s name, any CircleCare trademark, logo, or other proprietary information, or the layout and design of any page or form contained on a page, without CircleCare’s express written consent;
  • Access, tamper with, or use restricted areas of the Site, CircleCare’s computer systems, or the technical delivery systems of CircleCare’s providers;
  • Attempt to probe, scan, or test the vulnerability of any CircleCare system or network or breach any security or authentication measures;
  • Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by CircleCare or any of CircleCare’s providers or any other third party (including another user) to protect the Site, CircleCare Services, CircleCare Content or Profile Content;
  • Attempt to access or search the Site, CircleCare Services, or CircleCare Content or download CircleCare Content or Profile Content from the CircleCare Services through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by CircleCare or other generally available third party web browsers;
  • Use the CircleCare Services or Site to send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters, or other form of solicitation;
  • Use any meta tags or other hidden text or metadata utilizing a CircleCare trademark, logo URL, or product name without CircleCare’s express written consent;
  • Use the Site, CircleCare Services, CircleCare Content or Profile Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
  • Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site or CircleCare Services to send altered, deceptive or false source-identifying information;
  • Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site or CircleCare Services;
  • Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site or CircleCare Services; or
  • Encourage or enable any other individual to do any of the foregoing.

CircleCare will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. CircleCare may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms.

You acknowledge that CircleCare has no obligation to monitor your access to or use of the Site or CircleCare Services or to review or edit any Profile Content, but has the right to do so for the purpose of operating the Site and CircleCare Services, to ensure your compliance with these Terms, and to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.

CircleCare reserves the right, at any time and without prior notice, to remove or disable access to any Profile Content that CircleCare, at its sole discretion, considers to be in violation of these Terms or otherwise harmful to the Site or CircleCare Services.

We respect the intellectual property rights of others and expects its users to do the same.It is CircleCare’s policy, in appropriate circumstances and at its discretion, to disable and/or terminate the accounts of users who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others.

In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website, CircleCare will respond expeditiously to claims of copyright infringement committed using the CircleCare website (the “Site”) that are reported to CircleCare’s Designated Copyright Agent, identified in the sample notice below.

If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Site by completing the following DMCANotice of Alleged Infringement and delivering it to CircleCare’s Designated Copyright Agent. Upon receipt of the Notice as described below, CircleCare will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Site.

  1. Identify the copyrighted work that you claim has been infringed, or – if multiple copyrighted works are covered by this Notice – you may provide a representative list of the copyrighted works that you claim have been infringed.
  2. Identify the material that you claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the Site where such material may be found.
  3. Provide your mailing address, telephone number, and, if available, email address.
  4. Include both of the following statements in the body of the Notice:
    • “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
    • “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
  5. Provide your full legal name and your electronic or physical signature.Deliver this Notice, with all items completed, to CircleCare’s Designated Copyright Agent at copyright@MyCircleCare.com.

TERMINATION AND ACCOUNT CANCELLATION

If you breach any of these Terms, CircleCare will have the right to suspend or disable your Account or terminate these Terms and disable access to your Profiles, including those Profiles to which you have been permitted access by other Members, at its sole discretion and without prior notice to you. CircleCare reserves the right to revoke your access to and use of the Site and CircleCare Services at any time, with or without cause. You may cancel your Account at any time by sending an email to support@MyCircleCare.com.

WARRANTIES

You warrant and represent to CircleCare that your use of the CircleCare Services, whether as a Profile-creator or as a Caregiver, is solely for lawful purposes to facilitate the care of the individual that is the subject of the Profile. Neither the CircleCare Services, nor the Site, nor any CircleCare Content, nor any Profile Content may be used in any instance for any unlawful purpose.

DISCLAIMERS

THE SITE, CircleCare SERVICES, AND CircleCare CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, CircleCare EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. CircleCare MAKES NO WARRANTY THAT THE SITE, CircleCare SERVICES OR CircleCare CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. CircleCare MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SERVICES OR CircleCare CONTENT AVAILABLE FROM OR OBTAINED THROUGH THE CircleCare SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY CircleCare CONTENT OR PROFILE CONTENT OBTAINED THROUGH THE CircleCare SERVICES. PROFILE CONTENT IS SUBMITTED SOLELY BY MEMBERS AND CircleCare HAS NO RESPONSIBILITY OR LIABILITY FOR THE TRUTHFULNESS OR ACCURACY OF THE SAME.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CircleCare OR THROUGH THE SITE OR CircleCare SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

INDEMNITY

YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS CircleCare, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, FROM AND AGAINST ANY CLAIMS, LIABILITIES, DAMAGES, LOSSES, AND EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND ACCOUNTING FEES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH (I) YOUR ACCESS TO OR USE OF THE SITE, CircleCare SERVICES, ANY CircleCare CONTENT OR ANY PROFILE CONTENT (WHETHER OR NOT IT IS A PROFILE YOU CREATED OR OTHERWISE), (II) ANY USE OF OUR SITE OR CircleCare SERVICES FOR ANY UNLAWFUL OR INAPPROPRIATE CONDUCT, OR (III) ANY ACT OR OMISSION BY YOU THAT CONSTITUTES AN ACTUAL OR ALLEGED VIOLATION OF THESE TERMS.

LIMITATION OF LIABILITY

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE AND CircleCare SERVICE, INCLUDING WITHOUT LIMITATION ANY PHARMACY ASSISTANCE, REMAINS WITH YOU. NEITHER CircleCare NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE OR CircleCare SERVICES (INCLUDING WITHOUT LIMITATION ANY PHARMACY ASSISTANCE) WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE OR CircleCare SERVICES OR THE INABILITY TO USE OR ACCESS A PROFILE OR ANY SPECIFIC PROFILE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT CircleCare HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

IN NO EVENT WILL CircleCare’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE OR CircleCare SERVICES (INCLUDING WITHOUT LIMITATION ANY PHARMACY ASSISTANCE) EXCEED THE AMOUNTS YOU HAVE PAID TO CircleCare FOR USE OF THE SAME, IF YOU HAVE MADE ANY PAYMENTS TO CircleCare FOR USE OF THE SAME OR ONE HUNDRED DOLLARS ($100), WHICHEVER IS GREATER. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CircleCare AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

CONTROLLING LAW AND JURISDICTION

These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights, as contemplated below in “Dispute Resolution” will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.

ENTIRE AGREEMENT

These Terms constitute the entire and exclusive understanding and agreement between CircleCare and you regarding the Site and CircleCare Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between CircleCare and you regarding the Site and CircleCare Services. In the event that you have elected to access restricted portions of the Site or use additional CircleCare Services, which are subject to additional terms and conditions (including without limitation the Pharmacy Assistance), any additional terms and conditions applicable to that portion of the Site or additional CircleCare Service are expressly included within these Terms as well.

ASSIGNMENT

You may not assign or transfer these Terms, by operation of law or otherwise, without CircleCare’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. CircleCare may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

NOTICES

Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by CircleCare: (i) via email (in each case to the address that you provide); or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

DISPUTE RESOLUTION

You and CircleCare agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the CircleCare Services (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and CircleCare are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and CircleCare otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.

Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available from their web site or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration and a separate form for California residents.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

Arbitration Location and Procedure. Unless you and CircleCare otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and CircleCare submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. CircleCare will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.

Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, CircleCare will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

Changes. Notwithstanding the provisions of the “Modification” section above, if CircleCare changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to support@CircleCare.com) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of CircleCare’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and CircleCare in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

GENERAL

The failure of CircleCare 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 such right or provision will be effective only if in writing and signed by a duly authorized representative of CircleCare. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

CONTACTING CircleCare

If you have any questions about these Terms, please contact CircleCare at support@MyCircleCare.com