Arbitration Agreement

15.1 Agreement to Arbitrate

Subject to the terms of this Arbitration Agreement, you and Paritii agree that any and all disputes, claims, controversies or disagreements that have arisen or may arise between you and Paritii, whether arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or this Agreement and prior versions of this Agreement, including claims and disputes that arose between you and us before the effective date of this Agreement (each, a “Dispute”) will be resolved exclusively by final and binding arbitration, rather than in court, except that: (i) you and Paritii may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or Paritii may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.

15.2 Waiver of Jury Trial

You and Paritii hereby waive any constitutional and statutory rights to sue in court and have a trial in front of a judge or a jury.

You and Paritii are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the section titled “Agreement to Arbitrate” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

15.3 Waiver of Class and Other Non-Individualized Relief

Each of us may bring claims against the other only on an individual basis and not on a class, representative, collective, or mass action basis, and the parties hereby waive all rights to have any dispute be brought, heard, administered, resolved, or arbitrated on a class, collective, or representative basis. Only individual relief is available.

Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the section titled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, determines that the limitations of this section titled “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Paritii agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of Delaware. The parties agree that any claims or requests for relief that are severed from an arbitration may not proceed in litigation and shall be stayed until all Disputes between the parties that remain in arbitration are finally resolved. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or Paritii from participating in a class-wide settlement of claims.

15.4 Informal Dispute Resolution

Paritii is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer's satisfaction by emailing Paritii customer support at support@paritii.com. If such efforts prove unsuccessful, you and Paritii agree that good faith informal efforts to resolve disputes before starting an arbitration or initiating an action in small claims court (“Informal Dispute Resolution”). You and Paritii agree that as part of these efforts, either party has the option to ask the other to meet and confer telephonically or via videoconference (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you must also personally participate in the conference.

To initiate Informal Dispute Resolution, a party must give notice to the other party (“Notice”). Such Notice to Paritii should be sent by email to support@paritii.com or regular mail to our offices located at Paritii Health, Inc. (“Notice Address”). The Notice must include:

1. your name, telephone number, mailing address, e-mail address associated with your Account (if you have one);
2. the name, telephone number, mailing address and e-mail address of your counsel, if any; and
3. a description of your Dispute.

Paritii will send Notice, including a description of the Dispute, to your email address or regular address on file. It is your responsibility to ensure your email and regular address are correct and remain up to date.

The Informal Dispute Resolution process lasts 45 days and is a mandatory precondition to commencing arbitration. During this period, either party has the option to ask the other to participate in an Informal Dispute Resolution Conference as part of a good faith effort to resolve the Dispute. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree.

The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in Informal Dispute Resolution.

15.5 Rules and Forum

This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement, including the procedures governing Batch Arbitration, and any arbitration. If the Informal Dispute Resolution process described above does not resolve satisfactorily within forty-five (45) days after receipt of your Notice, you and Paritii agree that either party shall have the right to finally resolve the Dispute through binding arbitration.

The arbitration will be conducted by National Arbitration & Mediation (“NAM”) in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedure (the “NAM Comprehensive Rules”) in effect at the time of arbitration, except as supplemented, where applicable, by the NAM Mass Filing Supplemental Dispute Resolution Rules and Procedures (the “NAM Mass Filing Rules”; together with the NAM Comprehensive Rules, the “NAM Rules”), and as modified by this Arbitration Agreement. The NAM Rules are currently available at https://www.namadr.com/resources/rules-fees-forms/.

A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Demand”). The Demand must include:

1. the name, telephone number, mailing address, e-mail address of the party seeking arbitration, and the Account username (if applicable), as well as the email address associated with any applicable Account;
2. a statement of the legal claims being asserted and the factual bases of those claims;
3. a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy in United States dollars;
4. a statement certifying completion of the Informal Dispute Resolution process as described above; and
5. evidence that the requesting party will pay any necessary filing fees in connection with such arbitration.

Any Demand you send to Paritii should be sent by email to support@paritii.com or to the Notice Address. Paritii will provide the Demand to your email address on file. It is your responsibility to keep your contact information up to date.

If the party requesting arbitration is represented by counsel, the Demand shall also include counsel's name, telephone number, mailing address, and email address. Such counsel must also sign the Demand. By signing the Demand, counsel certifies to the best of counsel's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that, consistent with the standards set forth in Federal Rule of Civil Procedure 11(b):

1. the Demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution;
2. the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and
3. the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery (“Counsel's Certification”).

Unless you and Paritii otherwise agree, or the Batch Arbitration process discussed in section titled “Batch Arbitration” is triggered, the arbitration, including any in-person arbitration hearing, will be conducted in the State of California or, at your election, in the county where you reside. Subject to the NAM Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of arbitration. If NAM is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any NAM fees and costs will be solely as set forth in the applicable NAM fee schedules (the “Fee Schedules”). However, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Paritii will pay as much of the arbitration fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.

You and Paritii agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties' attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

You and Paritii agree that at least 14 days before the date set for an arbitration hearing, any party may serve an offer in writing upon the other party to allow judgment on specified terms. If the offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover any post-offer costs to which they otherwise would be entitled and shall pay the offering party's costs from the time of the offer.

15.6 Arbitrator

The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of Delaware and will be selected by the parties from NAM's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Demand, then the NAM will appoint the arbitrator in accordance with the NAM Rules, provided that if the Batch Arbitration process under the section titled “Batch Arbitration” is triggered, NAM, without soliciting input or feedback from any party, will appoint the arbitrator for each batch, subject to your right to object to that appointment.

15.7 Authority of Arbitrator

The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except that all Disputes arising out of or relating to the section titled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the section titled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection titled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.

15.8 Attorneys' Fees and Costs

The parties shall bear their own attorneys' fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Demand was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). To the extent, following a presentation on the merits, on its own motion or a party's, and after affording a reasonable opportunity to respond, an arbitrator determines that a party who commenced arbitration did not bring its claim(s) consistent with Counsel's Certification and the standards set forth in Federal Rule of Civil Procedure 11(b), the parties agree that the arbitrator shall, as part of its award, impose sanctions by ordering that the initiating party reimburse the responding party for all arbitration filing and administrative fees and arbitrator costs the responding party incurred under the Fee Schedules.

15.9 Batch Arbitration

To increase the efficiency of administration and resolution of arbitrations, you and Paritii agree that in the event that there are twenty-five (25) or more individual Demands of a substantially similar nature filed against Paritii by or with the assistance of the same law firm, group of law firms, or organizations, within a reasonably proximate period of time, for example, a ninety (90) day period, NAM shall:

1. administer the arbitration demands in batches of 100 Demands per batch (or, if between twenty-five (25) and ninety-nine (99) individual Demands are filed, a single batch of all those Demands, and, to the extent there are fewer than 100 Demands remaining after the batching described above, a final batch consisting of the remaining Demands);
2. appoint one arbitrator for each batch; and
3. provide for the resolution of each batch on a consolidated basis with one set of filing and administrative fees due per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award, which will provide for any and all relief to which the arbitrator determines each individual party is entitled (“Batch Arbitration”).

NAM shall administer all batches concurrently, to the extent possible.

All parties agree that Demands are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise NAM, and NAM shall appoint a sole standing Procedural Arbitrator or, should the circumstances so require, an Emergency Arbitrator, according to the NAM Rules, to determine the applicability of the Batch Arbitration process (the Procedural Arbitrator or Emergency Arbitrator, the “Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator's fees shall be paid by Paritii.

You and Paritii agree to cooperate in good faith with NAM to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Demands, as well as any steps to minimize the time and costs of arbitration, which may include:

1. the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and
2. the adoption of an expedited calendar of the arbitration proceedings.

This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective, and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision, and nothing about the Batch Arbitration process will preclude any party from participating in any arbitration administered according to that process.

15.10 30-Day Right to Opt Out

You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the Notice Address, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address associated with your Account, and an unequivocal statement that you want to opt out of this Arbitration Agreement. Any opt-out notice will be effective only if you send it yourself, on an individual basis, and opt out notices from any third-party purporting to act on your behalf will have no effect on your or Paritii's rights. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, including any previous versions of this Arbitration Agreement to which you agreed and did not timely opt out, which will remain in effect, and has no effect on any arbitration agreements with us you may enter in the future.

15.11 Invalidity, Expiration

Except as provided in the section titled “Waiver of Class or Other Non-Individualized Relief,” if any part or parts of this Arbitration Agreement (other than the section titled “Batch Arbitration”) are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed, and the remainder of the Arbitration Agreement shall continue in full force and effect. However, if the section titled “Batch Arbitration” of this Arbitration Agreement is found under the law to be invalid or unenforceable then, in that case, the entire Arbitration Agreement shall be void, and the parties agree that all Disputes will be heard in the state or federal courts located in the New Castle County, Delaware. You further agree that any Dispute that you have with Paritii as detailed in this Arbitration Agreement must be initiated within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

15.12 Future Changes to Arbitration Agreement

You and we agree that Paritii retains the right to modify this Arbitration Agreement in the future. Any such changes will be posted at support@paritii.com and you should check for updates regularly. We agree that if Paritii makes any future material change to this Arbitration Agreement, it will notify you. Your continued use of the Services, including the acceptance of products and services offered on the Services following the posting of changes to this Arbitration Agreement, constitutes your acceptance of any such changes. If you have previously agreed to a version of this Agreement with an arbitration agreement and you did not validly opt out of arbitration then, changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of your previous agreement to arbitrate. Paritii will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.