The Services and Telehealth Services are not intended for use in the event of an emergency. If you believe you may have a medical emergency, call 911 or your local emergency medical system immediately.
These Terms of Service (this ”Agreement”) is a binding agreement between you (”End User” or “you”) and Rightway Healthcare, Inc. (“we,” “us,” “our,” Company,” or “Rightway”). This Agreement governs your use of (i) the Rightway website located at https://rightwayhealthcare.com and Rightway mobile application (the “App”) (collectively, the “Rightway Properties”) and (ii) the Rightway Heathcare Service (the “Service”).
BY ACCESSING THE RIGHTWAY PROPERTIES OR THE SERVICE IN ANY CAPACITY, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE EIGHTEEN (18) YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE PROHIBITED FROM ACCESSING THE RIGHTWAY PROPERTIES OR THE SERVICE IN ANY CAPACITY AND ANY LICENSES RELATED THERETO SHALL IMMEDIATELY TERMINATE.
THIS AGREEMENT INCLUDES A PROVISION WAIVING THE RIGHT TO PURSUE ANY CLASS, GROUP, OR REPRESENTATIVE CLAIM AND REQUIRING YOU TO PURSUE CERTAIN DISPUTES THROUGH INDIVIDUAL ARBITRATION UNLESS YOU OPT-OUT WITHIN THE SPECIFIED TIME FRAME. PLEASE SEE SECTION 14 BELOW FOR MORE DETAIL.
To the extent that this Agreement conflicts with Rightway’s Services Agreement (or any related agreement) (a “Customer Agreement”) between Rightway and your employer or union (or the employer or union of the Rightway member, as applicable) (“Rightway Customer”), that Customer Agreement shall control.
Limited License. Subject to the terms of this Agreement, Rightway grants you a limited, revocable, non-exclusive, and non-transferable license to:
(a) access and otherwise use the Service; and
(b) download, install, and use the App for your personal, non-commercial use on a mobile device owned or otherwise controlled by you (each, a “Mobile Device”) strictly in accordance with the App’s documentation.
Company reserves the right to terminate this limited license at any time and for any reason, with or without notice to you.
Limitations and Restrictions on Use. You shall not:
(a) copy the Rightway Properties or Service, except as expressly permitted by this license;
(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Rightway Properties or Service;
(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Rightway Properties or Service, or any parts thereof;
(d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Rightway Properties or Service, including any copy thereof;
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Rightway Properties or Service, or any features or functionality of the Rightway Properties or Service, to any third party for any reason, including by making the Rightway Properties or Service available on a network where it is capable of being accessed by more than one device at any time; or
(f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Rightway Properties or Service.
Use of Rightway Healthcare Service. Subject to availability and the terms and conditions of this Agreement, you may use the Service to look up health care and diagnostic services providers.
Service Fees. The service fees for use of the Service have been paid by the Rightway Customer through which you receive access In the event that the Rightway Customer fails to pay for continued access to the Service, we reserve the right to suspend or terminate your use of the Service.
Provider Fees. Except with respect to the Telehealth Services described in Section 3, if made available by the Rightway Customer through which you receive access, your right to use the Service, including the App, does not include any health care and diagnostic service providers’ fees (for which you and your health insurance may be responsible). Likewise, we make no guarantee that all health care and diagnostic service providers who may be listed in the Service will be covered by any health insurance you may have, or that such providers will agree to accept you as a patient.
Appointments; Requirements; Limitations. In order to schedule appointments on your behalf, we must have accurate information. If you have not provided us with accurate information, it may not be possible to schedule appointments for you. In addition, you acknowledge and agree that: (a) in the event you must present a prescription in order to schedule or confirm an appointment with a specialist or diagnostic service provider, you may be required to separately contact the specialist or diagnostic service provider in order to schedule or confirm the appointment (the Service will not transmit any prescriptions when attempting to make appointments); (b) you will arrive to appointments we make on your behalf at least thirty (30) minutes prior to the scheduled appointment; and (c) you may be required to provide the health care or diagnostic service provider with additional information once you arrive for such appointments. You acknowledge that Company has no control over the health care and diagnostic services providers, and that Company cannot guarantee that such providers will be on time or otherwise timely honor appointments as scheduled.
Modification of Service Fees. Company reserves the right to modify the service fees imposed for the use of the Service.
Internet Access. You shall be solely responsible, financially and otherwise, for providing your own Internet access. You acknowledge that the Service is an on-line system that can only be accessed via the Internet.
No Agency. Nothing in this Agreement shall create a joint venture or shall authorize you to enter into any contract or commitment on behalf of Company.
No Use of Rightway Healthcare Service by Children. You acknowledge that the Service is not intended for use by children under the age of eighteen (18) years old. Children under the age of eighteen (18) years old are prohibited from using the Service.Responsibility for reporting operational failures. You acknowledge your responsibility to report operational failures, incidents, problems, concerns and complaints to email@example.com.
The Company does not provide medical advice or care. However, Rightway Customers may choose to offer certain telehealth services to their members that will be provided by Medical Group and accessed through the Services (“Telehealth Service”). Providers furnishing Telehealth Services are employed by or contracted by the Medical Group and not the Company to provide the Telehealth Services. The Providers, and not the Company, are responsible for the quality and appropriateness of the care they render to you. The Company and Medical Group do not provide any legal advice or representations in any way regarding any legal issues associated with advice, information, goods, or services offered by a Provider, including but not limited to any compliance obligations or steps necessary to comply with any state or federal laws and regulations.
The Providers are independent of the Company and are using the Services as a way to communicate with you. Any information or advice received from a Provider comes from them alone, and not from the Company. Your interactions with Providers who are not your regular health care providers via the Services are not intended to take the place of your relationship with your regular health care practitioners or primary care physician. Neither The Company, nor any of its subsidiaries or affiliates or any third party who may promote the Services or Service or provide a link to the Service, shall be liable for any professional advice obtained from a Provider via the Services or Service, nor any information obtained on the Services. The Company does not recommend or endorse any specific Providers, tests, physicians, medications, products, or procedures. You acknowledge that your reliance on any Providers or information delivered by the Providers via the Services or Service is solely at your own risk and you assume full responsibility for all risks associated herewith.
When you use the Services, or send e-mails, messages, and other communications from your desktop or mobile device to us, you are communicating with us electronically. You consent to receive electronic communications from us and, if the applicable Rightway Customer provides you access with the Telehealth Services, the Medical Group. You agree that (a) all agreements and consents can be signed electronically and (b) all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such notices and other communications be in writing. The Company and Medical Group may contact you by telephone, mail, or email to verify your account information. The Company and Medical Group may request further information from you and you agree to provide such further information to ensure that you have not fraudulently created your account. If you do not provide this information in the manner requested within 14 days of the request, we reserve the right to suspend, discontinue, or deny your access to and use of the Services until you provide the information to us as requested.
By providing your mobile number, you are agreeing to be contacted by or on behalf of the Company at the mobile number you have provided, including calls and text messages, to receive informational Service-related messages. If you choose to opt out of such messaging, we may confirm your opt out by text message. If you subscribe to multiple types of text messages from us, we may unsubscribe you from the service that most recently sent you a message or respond to your STOP message by texting you a request to identify services you wish to stop. Please note, that by withdrawing your consent, some Service features and certain Services may no longer be available to you. Keep in mind that if you stop receiving text messages from us you may not receive important and helpful information and reminders about your Services.
You acknowledge that using the Services will involve the transmission of certain personal data which could be considered Protected Health Information (“PHI”) as defined under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended, including, without limitation, your name, contact information, date of birth, social security number, your health plan(s) and provider(s) (e.g., medical, dental, and vision), and information about your medical diagnoses, treatment, and claims, as well as the name, contact information, date of birth, social security number, health plan(s) and provider(s), and medical diagnosis, treatment, and claims information about your spouse and dependent(s).
Employees of Self-insured Employers
The Company acts as a “business associate,” as defined by HIPAA, with respect to self-insured employers, which are subject to HIPAA as “covered entities.” The Company also acts as a “business associate” to the Medical Group. As required by HIPAA, the Company executes a business associate agreement with self-insured employers and has executed a business associate agreement with the Medical Group, which governs such employers’ disclosure of PHI to the Company and Company’s use and disclosure of PHI.
Employees of Employers That Are Not Self-Insured
You acknowledge that the Company is neither a covered entity nor a business associate, as defined under HIPAA, with respect to employers that insure their employees through third-party insurers. Employees of those employers must therefore explicitly authorize the Company to receive and use their PHI in order for Rightway to be able to provide the full Service. The Company presents employees in this category the opportunity to submit an electronic HIPAA authorization form upon enrollment in the Service. In the event that a health insurer or health care provider requires the employee to sign an additional authorization form before such insurer or provider will disclose employee PHI to the Company, the employee will need to sign this additional form before the Company is able to provide the applicable Service.
Ownership of Rightway Properties and Service. As between you and the Company, you acknowledge that Company is the sole and exclusive owner of the Rightway Properties and the Service. You further acknowledge that nothing in this Agreement shall constitute an assignment or other transfer of rights in the App or Service to you. All rights associated with the Rightway Healthcare App and Service, including without limitation all copyrights, patents, and trade secrets, shall remain the sole and exclusive property of Company.
You acknowledge that the Rightway Properties, the Service, and the related algorithms, methods of implementation, methods of organizing and presenting health care and diagnostic service providers, ideas, and all other information relating to the Rightway Properties and Service (collectively, the “Rightway Trade Secrets”) are trade secrets. You shall maintain the confidentiality of the Rightway Trade Secrets, shall hold the Rightway Trade Secrets in strict confidence, and shall not disclose the Rightway Trade Secrets to any third party, nor use for any purpose other than as expressly permitted by Company. The obligation to maintain the confidentiality of the Rightway Trade Secrets is a fiduciary obligation that shall survive termination of this Agreement and continue for so long as the relevant information remains confidential and/or a trade secret.
Trademarks. You acknowledge that Company is the owner of various trademarks, including RIGHTWAY HEALTHCARE™, and such additional marks as Company may adopt in the future (collectively, the “Company Trademarks”). You may not use any of the Company Trademarks without Company’s express written permission (which may be withheld). Under no circumstances shall you adopt or use any trademarks that are confusingly similar to any of the Company Trademarks.
Company may from time to time in its sole discretion develop and provide updates to the Rightway Properties or Service, which may include upgrades, bug fixes, patches, other error corrections, or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
Based on your Mobile Device settings, when your Mobile Device is connected to the internet either: (a) the App will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the App or portions thereof may not properly operate should you fail to do so.
You further agree that all Updates will be deemed part of the respective Rightway Property or Service and be subject to all terms and conditions of this Agreement.
The Rightway Properties or Service may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (collectively, “Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
Termination. The term of Agreement commences when you access the Rightway Properties or enroll in the Service and will continue in effect until terminated by you or Company as set forth in this Section.
With respect to the Service, you may terminate this Agreement at any time by deleting the Rightway App and all copies thereof from your Mobile Device and by notifying Company that you wish to terminate your access to the Service. Company reserves the right to terminate this Agreement at any time and without prior notice to you; in addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
Upon termination, all rights granted to you under this Agreement will also terminate; and you must cease all use of the Service, including the App and delete all copies of the App from your Mobile Device.
Termination will not limit any of Company’s rights or remedies in this Agreement or otherwise by law or in equity.
Survival. Your obligations arising out of and the restrictions contained in Sections 1, 5, 6, 11, 12, 13, 14, and 15 shall survive termination of this Agreement.
You acknowledge that the Service or Rightway Properties may not always be available, either by virtue of Company’s actions or conditions entirely beyond Company’s control and Company shall not be liable to you for any loss relating to the unavailability of the Service. You further acknowledge that Company is not making any recommendations as to any particular health care or diagnostic services provider, but rather, is merely providing information about potential providers as that information was made available to Company.
Company does not warrant the accuracy of information regarding health care and diagnostic service providers that you may identify through the Service. You agree that you will independently verify information about potential health care and diagnostic service providers prior to selecting and using such providers, and that you will not rely upon the information that may be provided through the Service.
THE RIGHTWAY PROPERTIES AND SERVICE ARE PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE RIGHTWAY PROPERTIES OR SERVICE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE RIGHTWAY PROPERTIES OR SERVICE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE ANY OR ALL PORTIONS OF THE RIGHTWAY PROPERTIES OR SERVICE FOR: (A) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES; OR FOR (B) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICE. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees and court costs, arising from or relating to: a) any treatment or services that you may receive from health care and diagnostic service providers; or b) your use or misuse of the Service or Rightway Properties or your breach of this Agreement, including but not limited to the content you submit or make available through the Service or Rightway Properties.
Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
Force Majeure. Except with respect to payment obligations, neither party shall be liable for any failure or delay in its performance or equipment due to causes beyond such party’s reasonable control, including without limitation: acts of God, fire, flood, hurricanes, or other catastrophes; any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; national emergencies, insurrections, riots, wars; unavailability of rights-of-way or materials; or strikes, lock-outs, work stoppages, or other labor difficulties; or failure of the Internet.
Entire Agreement. This Agreement constitutes the entire agreement and understanding between you and Company with respect to the Rightway Properties or Service, and supersedes all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Rightway Properties or Service.
Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.Notice. All notices hereunder shall be effective if delivered personally or sent by certified mail, postage prepaid, to: Rightway Healthcare, Inc., 422 West Broadway, Suite 3F, New York, New York 10012.
Assignment. Company may, in its sole discretion, assign any or all rights under this Agreement to a third party without any additional notice to or consent from you. You may not assign any or all of your rights under this Agreement to a third party without Company’s prior written approval and Company shall have sole discretion to determine whether to provide or withhold such approval.
Third-Party Beneficiary. You acknowledge and agree that, except as otherwise provided in this Agreement, there shall be no third party beneficiaries to this Agreement.
Governing Law and Judicial Forum. This Agreement will be interpreted in accordance with the laws of the State of New York without regard to conflict- or choice-of-law principles. In the event that you have opted out of arbitration (as set out below) or that the agreement to arbitrate is otherwise found not to apply to you or your claim, you and Rightway agree that any judicial proceeding (other than as described above) may only be brought in a court of competent jurisdiction in New York. Both you and Rightway consent to venue and personal jurisdiction there. Notwithstanding the foregoing, you and Rightway may bring an action in any court of competent jurisdiction (i) to compel arbitration pursuant to Section 15 below or (ii) to enforce an arbitral award issued thereunder.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND RIGHTWAY TO ARBITRATE CERTAIN DISPUTES AND CLAIMS ON AN INDIVIDUAL BASIS AND LIMITS THE MANNER IN WHICH YOU AND RIGHTWAY CAN SEEK RELIEF FROM EACH OTHER.
You agree that any and all past, present and future disputes, claims or causes of action between you and Rightway arising out of or relating to this Agreement, the Rightway Properties or Service, the formation of this Agreement, or any other dispute between you and Rightway or any of Rightway’s licensors, distributors, suppliers or agents (including any application store or platform from which the Service is accessed or downloaded), and whether arising prior to or after your agreement to this Section, (collectively, “Dispute(s)”) will be governed by the procedure outlined below. You and Rightway further agree that any arbitration pursuant to this Section shall not proceed as a class, group, or representative action.
(a) Informal Dispute Resolution. Rightway wants to address your concerns without the need for a formal legal dispute. Before filing a claim against Rightway, you agree to try to resolve the Dispute informally by contacting firstname.lastname@example.org. Similarly, if you have provided an email address to us as part of your enrollment in the Service, Rightway agrees to do the same. If a dispute is not resolved within 30 days after the email noting the Dispute is sent, you or Rightway may initiate an arbitration proceeding as described below.
(b) We Both Agree To Arbitrate. By agreeing to these Terms, you and Rightway each and both agree to resolve any Disputes—including any Dispute concerning the enforceability, validity, scope, or severability of this agreement to arbitrate—through final and binding arbitration as discussed herein, except as set forth below.
(c) Opt-out of Agreement to Arbitrate. You may decline this agreement to arbitrate by contacting email@example.com within 30 days of first accepting these Terms and stating that you (include your first and last name, and email address) decline this arbitration agreement. By opting out of the agreement to arbitrate, you will not be precluded from using the Service, but you and Rightway will not permitted to invoke the mutual agreement to arbitrate to resolve Disputes under the terms otherwise provided herein.
(d) Arbitration Procedures and Fees. You and Rightway agree that JAMS in New York, New York will administer the arbitration under its JAMS Comprehensive Arbitration Rules & Procedures (“JAMS Rules”). Those rules are available at https://www.jamsadr.com/rules-comprehensive-arbitration/. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator in accordance with those rules. The arbitration proceeding and any award shall be confidential. You and Rightway further agree that the arbitration will be held in New York, New York, or, at your election, will be conducted telephonically or via other remote electronic means. The JAMS Rules will govern payment of all arbitration fees. This Section 15 shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in this Agreement.
(e) Arbitration Shall Proceed Individually. You and Rightway agree that the arbitration of any Dispute shall proceed on an individual basis, and neither you nor Rightway may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a claim to resolve any Dispute against Rightway will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.
(f) Class Action and Collective Arbitration Waiver. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR RIGHTWAY SHALL BE ENTITLED TO CONSOLIDATE, JOIN, OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR PARTICIPATE IN ANY COLLECTIVE ARBITRATION (AS DEFINED ABOVE) OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY DISPUTE (AS DEFINED ABOVE), ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, IN THE EVENT ALL OR ANY PORTION OF SUBSECTIONS (E) OR (F) OF THIS SECTION ARE FOUND TO BE INVALID OR LESS THAN FULLY ENFORCEABLE, THEN THE ENTIRETY OF THIS SECTION MAY BE DEEMED VOID AND AS HAVING NO EFFECT UPON EITHER PARTY’S ELECTION.
(g) Intellectual Property Claims. You agree that notwithstanding the requirement that all Disputes be resolved through binding arbitration, in the event Company has a claim against you relating to copyright infringement, trademark infringement, patent infringement, actual or threatened misappropriation of trade secrets, or actual or threatened breach of the confidentiality provisions in this Agreement, Company may commence an action in state or federal court in New York, New York to obtain a temporary or preliminary injunction to prevent any or all such acts from continuing, with or without notice to you. Under such circumstances, you acknowledge that any such violation will result in irreparable harm to Company, and therefore you consent to the immediate issuance of a temporary or preliminary injunction. You further agree that such an injunction shall be conditioned upon Company posting an injunction bond in the amount of $5,000.00. Immediately following the entry of a temporary or preliminary injunction, the court that issued the injunction shall issue a stay of the proceedings pending resolution of binding arbitration consistent with the rest of this section. In the event Company prevails in the binding arbitration as to the issues or claims that resulted in the issuance of the temporary or preliminary injunction, the arbitrator in its decision shall convert the preliminary or temporary injunction to a permanent injunction.