MEDICAL SAFETY, INC (MSI) TERMS OF SERVICE AGREEMENT (TOS)

EFFECTIVE AS OF: June 27, 2022

IMPORTANT, READ CAREFULLY:  YOUR USE OF AND ACCESS TO THE WEBSITE AND PRODUCTS AND SERVICES AND ASSOCIATED SOFTWARE, INCLUDING, BUT NOT LIMITED, TO MSI’S “PATIENT CONNECT” SERVICE (COLLECTIVELY, THE “SERVICES”), OF MEDICAL SAFETY, INC. AND ITS AFFILIATES (COLLECTIVELY, “MSI”) IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS OF SERVICE (“TOS” or “Agreement”), WHICH INCLUDE YOUR AGREEMENT TO ARBITRATE CLAIMS. 

PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.

BY CLICKING/CHECKING THE “I AGREE” BUTTON/BOX, ACCESSING THE MSI WEBSITE, OR BY UTILIZING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TOS AND ALL EXHIBITS, ORDER FORMS, AND INCORPORATED POLICIES.  THE SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TOS.

MSI will provide the Services, and You may access and use the Services according to this Agreement.  MSI may give the Services through its Affiliates or by using an online registration page or order form (“Order Form”).  In that case, the Order Form may contain additional terms and conditions regarding the Services. 

Unless otherwise expressly outlined in any such additional terms and conditions applicable to the specific Services You choose to use; those other terms are now incorporated into this Agreement concerning Your use of that Service.

System Requirements.  Use of the Services may require one or more compatible devices, Internet access (fees may apply), and specific software (fees may apply), and may require obtaining updates or upgrades from time to time.  Because use of the Services involves hardware, software, and Internet access, your ability to access and use the Services may be affected by the performance of these factors.  High-speed Internet access is recommended.  You acknowledge and agree that such system requirements, which may be changed from time to time, are Your responsibility.

1. DEFINITIONS.  The following definitions will apply in this Agreement, and any reference to the singular includes a reference to the plural and vice versa:
   
   “Affiliate” means, concerning a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with that Party.  For purposes of this Agreement, “control” means an economic or voting interest of at least fifty percent (50%) or, in the absence of such financial or voting interest, the power to direct or cause the direction of the management and set the policies of such entity.
   
   “End User” means a Host or Participant (as defined in the Services Description) who uses the Services.

    

“Host” is a medical practice or medical provider contracting with MSI to use the Services of their patient Participants and other authorized End Users.

“Initial Subscription Term” means the Host’s initial subscription term for a Service as specified in an Order Form.

“Effective Service Date” means the date a Host’s Initial Subscription Term begins as specified in an Order Form.

“Renewal Term” means a Host’s renewal subscription term for a Service commencing after the Initial Subscription Term or another Renewal Term specified in an Order Form.

1. SERVICES.  MSI will provide the Services described on the Order Form and standard updates to the Services generally made available by MSI during the term.  In its sole discretion, MSI may discontinue the Services or modify the features of the Services from time to time without prior notice.

    

   1. Beta Services.  From time to time, MSI may offer access to services classified as Beta versions from time to time.  Access to and use of Beta versions may be subject to additional agreements.  MSI makes no representations that a Beta version will ever be made available and reserves the right to discontinue or modify a Beta version without notice.  Beta versions are provided AS-IS, may contain bugs, errors, or other defects, and Your use of a Beta version is at Your sole risk.

1. USE OF SERVICES AND YOUR RESPONSIBILITIES.  You may only use the Services as a Host or as a Participant or End User under the terms of this Agreement.  Hosts are solely responsible for Your and Your End Users’ use of the Services.  You shall abide by and ensure compliance with all laws in connection with Your and each End User’s use of the Services, including, but not limited to, laws related to intellectual property, privacy, and export control.  Use of the Services is void where prohibited.

    

   1. Registration Information.  You may be required to provide information about Yourself to register for and use certain Services.  You agree that any such information shall be accurate.  You may also be asked to choose a username and password.  You are entirely responsible for maintaining Your username and password security and agree not to disclose such to any third party.

       

   2. Your Content.  You agree that You are solely responsible for the content (“Content”) sent or transmitted by You or displayed or uploaded by You in using the Services and for compliance with all Laws about the Content, including, but not limited to, laws requiring You to obtain the consent of a third party to use the Content and to provide appropriate notices of third-party rights.  You represent and warrant that You have the right to upload the Content to MSI and that such use does not violate or infringe on any third party’s rights.  Under no circumstances will MSI be liable in any way for any (a) Content that is transmitted or viewed while using the Services, (b) errors or omissions in the Content, or (c) any loss or damage of any kind incurred because of the use of, access to, or denial of access to Content.  Although MSI is not responsible for any Content, MSI may delete any Content without notice to You if MSI becomes aware that it violates any provision of this Agreement or any law.  You retain copyright and any other rights You already hold in Content that You submit, post, or display on or through the Services.

       

   3. Recordings.  The Host may choose to record communications or messages made using the Services.  Using the Services by Participants or End Users represents Your consent for MSI to store recordings.  You will receive a notification from the Host when recording is enabled.  The Host is responsible for compliance with notice requirements for recordings.

       

   4. Prohibited Use.  You agree that You will not use, and will not permit any End User to use, the Services to:  (i) modify, disassemble, decompile, prepare derivative works of, reverse engineer or otherwise attempt to gain access to the source code of the Services; (ii) knowingly or negligently use the Services in a way that abuses, interferes with, or disrupts MSI’s networks, Your accounts, or the Services; (iii) engage in activity that is illegal, fraudulent, false, or misleading, (iv) transmit through the Services any material that may infringe the intellectual property or other rights of third parties; (v) build or benchmark a competitive product or service, or copy any features, functions or graphics of the Services; or (vi) use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation; (vii) upload or transmit any software, Content or code that does or is intended to harm, disable, destroy or adversely affect performance of the Services in any way or which does or is intended to harm or extract information or data from other hardware, software or networks of MSI or other users of Services; (viii) engage in any activity or use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Services, or any servers or networks connected to the Services or MSI’s security systems, (ix) use the Services in violation of any MSI policy or in a manner that violates applicable law, including, but not limited to, anti-spam, export control, privacy, and anti-terrorism laws and regulations and laws requiring the consent of subjects of audio and video recordings, and You agree that You are solely responsible for compliance with all such laws and regulations.

       

   5. Limitations on Use.  You may not reproduce, resell, or distribute the Services or any reports or data generated by the Services for any purpose unless You have been expressly permitted to do so under a separate agreement with MSI.  You may not offer or enable any third parties to use the Services purchased by You, display on any website or otherwise publish the Services or any Content obtained from a Service (other than Content created by You) or otherwise generate income from the Services or use the Services for the development, production or marketing of a service or product substantially similar to the Services.

1. RESPONSIBILITY FOR END USERS.  You are responsible for the activities of all End Users who access or use the Services through Your account, and You agree to ensure that any such End User will comply with the terms of this Agreement and any MSI policies.  MSI assumes no responsibility or liability for violations.  If You become aware of any breach of this Agreement in connection with the use of the Services by any person, please contact MSI at contact@MedicalSafetyInc.com.  MSI may investigate any complaints and violations that come to its attention and may take any (or no) action that it believes is appropriate, including, but not limited to, issuing warnings, removing the content, or terminating accounts and User profiles.  Under no circumstances will MSI be liable in any way for any data or other content viewed while using the Services, including, but not limited to, any errors or omissions in any such data or content or any loss or damage of any kind incurred because of the use of, access to, or denial of access to any data or content.

• ACKNOWLEDGEMENT BY HOSTS, PARTICIPANTS, AND END-USERS OF NO MEDICAL DIAGNOSIS AND TREATMENT BY MSI.  By using these Services, You acknowledge that all clinical and medical treatment and diagnostic decisions are the responsibility of the Host or other of the Participant’s professional healthcare providers.  You also believe that MSI is not responsible for determining the type and quality of the diagnostic tests and clinical guidelines necessary for You and Your providers to make medical and diagnostic decisions, as well as for complying with all laws, regulations, and licensing requirements applicable to the delivery of healthcare services. You indemnify and hold MSI harmless concerning all such decisions.  

MSI does not make any medical or diagnostic decisions or determinations, act upon the patient data in any professional capacity or determine the type of procedures. You need to make such determinations or decisions.  The Services may provide information that can be helpful in the diagnostic decisions or judgments while using appropriate data and evidence-based medicine according to decision support rules approved by You.  In an emergency situation, please seek help directly from medical professionals rather than seeking to use the Services.   

1. MSI OBLIGATIONS FOR CONTENT.  By industry standards, MSI will maintain reasonable physical and technical safeguards to prevent unauthorized disclosure or access to Content.  MSI will notify You if it becomes aware of unauthorized access to Content.  MSI will not access, view, or process Content except (a) as provided for in this Agreement and MSI’s Privacy Policy, (b) as authorized or instructed by You, (c) as required to perform its obligations under this Agreement; or (d) as required by law.  MSI has no other obligations concerning Content.

1. ELIGIBILITY.  You affirm that You are at least 16 years of age and are otherwise fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties outlined in this Agreement and abide by and comply with this Agreement.  Your access may be terminated without warning if we believe that You are under 16 or are otherwise ineligible.

1. INTENDED USE, RESTRICTION ON USE BY CHILDREN.  The Services are designed for business use.  You may use the Services for other purposes only to the extent authorized in these TOS.  MSI is not intended for use by individuals under the age of 16.  

1. CHARGES AND CANCELLATIONS.  To the extent payment by Host is required to use the Services, you agree that MSI may charge a Host credit card or make other payment mechanism selected by You and approved by MSI (“Your Account”) all amounts due and owing for the Services, including taxes and service fees, set up fees, subscription fees, or any other fee or charge associated with Your Account.  Unless stated otherwise, all prices and costs shown by MSI are exclusive of taxes and regulatory fees, service fees, set up fees, subscription fees, or any other fee or charge associated with Your Account.  Where applicable, taxes and regulatory costs will be charged on the invoices issued by MSI by local laws and regulations.  The taxes and regulatory fees charged can be changed without notice.

1. PAYMENTS.  All payments made by You as Host to us under this Agreement will be made free and clear of any deduction or withholding, as may be required by law.  Suppose any such deduction or withholding (including, but not limited to, domestic or cross-border withholding taxes) is required on any payment.  In that case, you will pay such additional amounts as are necessary so that the net amount received by us is equal to the amount then due and payable under this Agreement.  We will provide You with such tax forms as are reasonably requested to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.

1. MSI may change prices at any time, including changing from a free service to a paid service and charging for services that were previously offered free of charge; provided, however, that MSI will give you prior notice and an opportunity to terminate Your Account if MSI changes the price of a Service to which You are subscribed and will not charge You for a previously free Service unless You have been notified of the applicable fees and agreed to pay such fees.  You agree that in the event MSI is unable to collect the fees owed to MSI for the Services through Your Account, MSI may take any other steps it deems necessary to collect such fees from You and that You will be responsible for all costs and expenses incurred by MSI in connection with such collection activity, including collection fees, court costs, and attorneys’ fees.  You further agree that MSI may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.  You may cancel Your subscription at any time.  If You cancel, You will not be billed for any additional terms of service, and service will continue until the end of the current Subscription Term.  If You cancel, You will not receive a refund for any service already paid for.

1. TERMINATION.  The MSI website contains information on how to terminate Your Account; if You are a Participant or End User, please get in touch with the Host for details on how to terminate Your Account.  If a Host has purchased a Service for a specific term, such termination will be effective on the last day of the then-current term.  Your Order Form may provide that a Renewal Term will begin automatically unless either party provides notice of termination at least thirty (30) days before the next Renewal Term.  If You fail to comply with any provision of this Agreement, MSI may terminate this Agreement immediately and retain any previously paid fees.  Sections 1 and 3 through 20, inclusive, shall survive any termination of this Agreement.  Upon any termination of this Agreement, You must cease any further use of the Services.  If You are unhappy with the Services, your sole remedy is to stop using the Services and follow this termination process.

1. PROPRIETARY RIGHTS.  MSI and its suppliers, as applicable, retain ownership of all proprietary rights in the Services and all trade names, trademarks, service marks, logos, and domain names (“MSI Marks”) associated or displayed with the Services.  Without express written consent, You may not frame or utilize framing techniques to enclose any MSI Marks or other proprietary information (including images, text, page layout, or form) of MSI, and you agree not to remove or alter any MSI Marks.  Without MSI’s express written permission, You may not use any meta tags or any other “hidden text” utilizing MSI Marks.

1. COPYRIGHT.  You may not post, modify, distribute, or reproduce copyrighted material, trademarks, rights of publicity, or other proprietary rights without obtaining the prior written consent of the owner of such proprietary rights.  MSI may deny access to the Services to any user alleged to infringe another party’s copyright.  Without limiting the preceding, if You believe that Your copyright has been infringed, please notify MSI.

1. EXPORT RESTRICTIONS.  You acknowledge that the Services, or a portion thereof, may be subject to the Export Administration Regulations, 15 C.F.R. Parts 730-774, of the United States and may be subject to other applicable country export control and trade sanctions laws (“Export Control and Sanctions Laws”).  MSI will provide the U.S. export classification(s) appropriate to its Services upon request, if applicable.  You and Your End Users may not access, use, export, re-export, divert, transfer, or disclose any portion of the Services or any related technical information or materials, directly or indirectly, in violation of Export Control and Sanctions Laws.  You represent and warrant that: (i) You and Your End Users (a) are not citizens of, or located within, a country or territory that is subject to U.S. trade sanctions or other significant trade restrictions (including, without limitation, Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk and Luhansk regions of Ukraine) and that You and Your End Users will not access or use the Services, or export, re-export, divert, or transfer the Services, in or to such countries or territories; (b) are not persons, or own 50% or more, individually or in the aggregate by persons, identified on the U.S. Department of the Treasury’s Specially Designated Nationals and Blocked Persons List or Foreign Sanctions Evaders Lists; and (c) are not persons on the U.S. Department of Commerce’s Denied Persons List, Entity List, or Unverified List, or U.S. Department of State proliferation-related lists; (ii) You and Your End Users located in China, Russia, or Venezuela are not Military End Users and will not put MSI’s Services to a Military End Use, as defined in 15 C.F.R. 744.21; (iii) no Content created or submitted by You or Your End Users is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control and Sanctions Laws; and (iv) You and Your End Users will not take any action that would constitute a violation of, or be penalized under, U.S. antiboycott laws administered by the U.S. Department of Commerce or the U.S. Department of the Treasury.  You are solely responsible for complying with the Export Control and Sanctions Laws and monitoring them for any modifications.

1. INJUNCTIVE RELIEF.  You acknowledge that any use of the Services contrary to this Agreement or any transfer, sublicensing, copying, or disclosure of technical information or materials related to the Services, may cause irreparable injury to MSI, its Affiliates, suppliers, and any other party authorized by MSI to resell, distribute, or promote the Services (“Resellers”).  Under such circumstances, MSI, its Affiliates, suppliers, and Resellers will be entitled to equitable relief without posting a bond or other security, including, but not limited to, preliminary and permanent injunctive relief.

1. NO WARRANTIES.  YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED “AS IS.”  MSI, ITS AFFILIATES, SUPPLIERS, AND RESELLERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.  MSI, ITS AFFILIATES, SUPPLIERS, AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES, OR THAT THE SERVICES WILL MEET ANY USER’S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.  USE OF THE SERVICES IS AT YOUR SOLE RISK.  ANY MATERIAL AND DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SERVICES USED IS AT YOUR DISCRETION AND RISK.  YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO AND RESULTING FROM THE SERVICES USED.  THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SERVICES REMAINS WITH YOU.  MSI DOES NOT ASSUME ANY RESPONSIBILITY FOR THE RETENTION OF ANY USER INFORMATION OR COMMUNICATIONS BETWEEN USERS.  MSI CAN NOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM THE SERVICES USED.  USE IS AT YOUR OWN RISK.

1. INDEMNIFICATION.  You agree to indemnify, defend and hold harmless MSI, its affiliates, officers, directors, employees, consultants, agents, suppliers, and Resellers from any third-party claims, liability, damages, and costs (including, but not limited to, attorneys’ fees) arising from Your use of the Services.  The indemnification obligation of the Host expressly includes, but is not limited to, claims, liability, damages, and costs relating to any asserted inadequacy of the Host’s medical treatment of the Participant.  

1. LIMITATION OF LIABILITY.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MSI OR ITS AFFILIATES, SUPPLIERS, OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF MSI, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN ANY CASE, MSI’S, ITS AFFILIATES’, SUPPLIERS’, AND RESELLERS’ MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE SERVICES (IF ANY) IN THE TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS.  Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to You.

1. AGREEMENT TO ARBITRATE, WAIVER OF CLASS ACTION.  You agree to resolve disputes only on an individual basis, through reasonable faith dispute resolution efforts, use of small claims courts, or arbitration under the provisions of Exhibit A.  The parties expressly waive any right to bring any action, lawsuit, or proceeding as a class or collective action, private attorney general action, or any other proceeding in which any party acts or proposes to act in a representative capacity.

1. PRIVACY AND OTHER POLICIES.  Use of the Services is also subject to MSI’s Privacy Policy, a link to which can be found by selecting “Privacy and Legal Policies” in the footer of MSI’s website.  The Privacy Policy and all policies noticed at MedicalSafetyInc.com/Privacy are incorporated into this Agreement by this reference.  Additionally, You understand and agree that MSI may contact You via e-mail or otherwise with information relevant to Your use of the Services, regardless of whether You have opted out of receiving marketing communications or notices.

1. MISCELLANEOUS

    

1. Choice of Law and Forum.  This Agreement shall be governed by and construed under the laws of the State of California, U.S.A., as applied to agreements entered into and performed by California-by-California residents.  Except as provided in Exhibit A, the Parties consent to the exclusive jurisdiction and venue of the state courts in and serving San Jose County, California, and the federal courts in the Northern District of California.

1. Waiver and Severability.  Failure by either Party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision.  Suppose any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original condition, and the remainder of this Agreement will remain in full force and effect.

1. General Provisions.  This Agreement embodies the entire understanding and agreement between the Parties respecting the subject matter of this Agreement and supersedes any prior understandings and agreements between the parties respecting such subject matter, except that if You or Your company have executed a separate written agreement or You have signed an order form referencing a separate agreement governing Your use of the Services, then such agreement shall control to the extent that any provision of this Agreement conflicts with the terms of such agreement.  MSI may elect to change or supplement the terms of this Agreement from time to time at its sole discretion.  MSI will exercise commercially reasonable business efforts to provide notice to You of any material changes to this Agreement.  Within ten (10) business days of posting changes to this Agreement (or ten (10) business days from the date of the notice, if such is provided), they will be binding on You.  If You disagree with the changes, You should discontinue using the Services.  If You continue using the Services after such a ten-business-day period, You will be deemed to have accepted the changes to the terms of this Agreement.  To participate in certain Services, You may be notified that You are required to download software and agree to additional terms and conditions.  Unless expressly outlined in such additional terms and conditions, those other terms are incorporated into this Agreement.  This Agreement has been prepared in English, and such version shall be controlled in all respects.  Any non-English version of this Agreement is solely for accommodation purposes.

Exhibit A

Binding Arbitration

This Exhibit A to the TOS describes the further provisions which apply to the Binding Arbitration and Class Action Waiver.

1. Disputes.  A dispute is any controversy between You and MSI concerning the Services, any software related to the Services, the price of the Services, Your account, MSI’s advertising, marketing, or communications, Your purchase transaction or billing, or any term of this Agreement, under any legal theory including contract, warranty, tort, statute, or regulation, except disputes relating to the enforcement or validity of Your or MSI’s intellectual property rights.  As part of the best-efforts process to resolve disputes, and before initiating arbitration proceedings, each party agrees to provide notice of the dispute to the other party, including a description of the conflict, what efforts have been made to resolve it, and what the disputing party is requesting as resolution, to Contact@MedicalSafetyInc.com.

1. Small Claims Court Available.  You may initiate an action in Your local Small Claims Court if You meet the court’s requirements.  However, MSI reserves the right to require arbitration if such a claim is transferred, removed, or appealed to a different court.

1. Arbitration Procedure.  Disputes not resolved under Section 1 or 2 shall be resolved through arbitration.  The American Arbitration Association (“AAA”) will conduct any arbitration under its Commercial Arbitration Rules.  For more information, see adr.org.  Arbitration hearings will occur in Your primary business location’s federal judicial district or the Northern District of California.  A single arbitrator will be appointed.  The arbitrator must:  (a) follow all applicable substantive law; (b) follow applicable statutes of limitations; (c) honor valid claims of privilege; (d) issue a written decision including the reasons for the award.  The arbitrator may award damages, declaratory or injunctive relief, and costs (including reasonable attorneys’ fees).  Any arbitration award may be enforced (such as through a judgment) in any court with jurisdiction.  Under AAA Rules, the arbitrator rules on their authority, including the arbitrability of any claim; however, a court has exclusive jurisdiction to enforce the prohibition on arbitration on a class-wide basis or in a representative capacity.

1. Arbitration Fees.  The AAA Rules will govern the payment of filing fees and the AAA’s and arbitrator’s fees and expenses.

1. Conflict with AAA Rules.  This Agreement governs if there is a conflict with the AAA’s Commercial Arbitration Rules.

1. The Requirement to File Within One Year.  Notwithstanding any other statute of limitations, a claim or dispute under this Agreement must be filed in Small Claims Court or noticed for arbitration within one year of when it could first be filed, or such lawsuit will be permanently barred.

1. Severability.  If the class action waiver is illegal or unenforceable as to all or some parts of a dispute, then those parts will not be arbitrated but will be resolved in court, with the balance resolved through arbitration.  If any provision of this Exhibit A is illegal or unenforceable, then that provision will be severed; however, the remaining provisions shall still apply and shall be interpreted as nearly as possible to achieve the original intent of this Exhibit, inclusive of the severed provision.