Last updated: March 22, 2024
These Terms of Service (these “Terms”) govern your access and use of (i) the IntelyCare proprietary platform (the “Platform”) made available through the mobile application currently known as “IntelyCare” (the “App”) and (ii) all data, applications, content, materials, tools, features and functionalities offered on or through our Platform and the App (collectively, the “Solutions”), each of which is operated or provided by or on behalf of IntelyCare, Inc. (“IntelyCare”, “we” or “us”).
These Terms govern your access to and use of the Solutions. Please read these Terms carefully, as they include important information about your legal rights. By accessing and/or using the Solutions, you are agreeing to these Terms. If you do not understand or agree to these Terms, you must not use the Solutions.
For purposes of these Terms, “you” and “your” means you as the user of the Solutions. If you use the Solutions on behalf of a company or other entity then “you” includes you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms on the entity’s behalf.
Section 9 contains an arbitration clause and class action waiver. As set forth below, by agreeing to these Terms, you and IntelyCare agree (a) to resolve all claims between you and us related to your application for employment, employment (if any), termination of employment, or the Solutions through binding individual arbitration, which means that you and IntelyCare waive any right to have those disputes decided by a judge or jury, and (b) to waive any right to proceed as or participate in class actions, class arbitrations, or representative actions. This agreement covers any claims you may have against any IntelyCare Entities, as described below.
1. ELIGIBILITY
1.1 Minimum Age. You must be 18 years of age or older and reside in the United States to use the Solutions.
1.2 Application to Become an IntelyPro. As an “IntelyPro” or “IP”, you will be employed by IntelyCare to provide certain healthcare services (the “Professional Services”) for healthcare facilities who use the Solutions (the “Facilities”) to fill nursing shifts posted through the Solutions, including per-diem nursing shifts, contract assignments and/or home health visits (each, a “Shift”). Before you can become an IP, you must submit an application and by submitting an application to become an IP, you consent to and authorize IntelyCare and/or its agents to conduct background checks, drug screens and additional local, State and Federal compliance checks as required by applicable law or regulation. Your application and agreement to these Terms allows us to start the process, but you only become an IP upon notification from IntelyCare. Once you become an IP, IntelyCare will provide your name, contact information, and credentials to the Facilities whose posted Shifts you accept, and you consent to such sharing of your information as part of the Solutions.
1.3 Requirements. You represent and warrant that at all times you will: (a) hold and maintain in effect all required licenses, permits, approvals, registrations, certifications, credentials, or other authorizations necessary to perform Professional Services to Facilities whose Shifts you accept through the Solutions; and (b) possess the necessary training, expertise and experience to provide such Professional Services in a competent, safe, and professional manner with due skill, care and diligence.
1.4 Documentation. As part of your IP application, you must upload to the Platform applicable documentation for IntelyCare to verify your licenses, permits, registrations, certifications, credentials and other documentation and information necessary to confirm your ability to perform Professional Services in the applicable state(s) where you may be accepting Shifts. You hereby represent and warrant that all documentation and other information you provide as part of your IP application is accurate, complete and up to date and that you shall keep current all such documentation and information. IntelyCare reserves the right to independently verify your documentation and information as IntelyCare may deem appropriate in its reasonable discretion.
1.5 Notice of Disciplinary Actions. You shall notify IntelyCare in writing immediately of any disciplinary actions taken against you or quality assurance proceedings or investigations involving you, including, but not limited to, licensing boards, quality assurance committees, hospitals or other medical facilities and medical societies, and any other proceeding or investigation the result of which might prohibit or otherwise restrict or impair your ability to perform Professional Services.
1.6 Privacy Policy. Our Privacy Policy describes how we handle the information you provide to us when you use the Solutions, including all information and documentation you provide as part of your IP application. For an explanation of our privacy practices, please visit our Privacy Policy located at https://www.intelycare.com/privacy-policy/, the terms of which are incorporated herein by reference.
1.7 Additional Terms. At all times you are an IP, you shall comply with the terms of the IP Handbook and Clinical Orientation & Training Handbook located at https://www.intelycare.com/intelypro-guidelines/, the terms of which are incorporated herein by reference.
2. USE OF THE SOLUTIONS
2.1 Creating and Safeguarding your Account. To use certain portions of the Solutions, such as browsing and accepting Shifts, you need to create an account (“Account”). You agree to provide us with accurate, complete and updated information for your Account. You can access, edit and update your Account through your Account settings on the App. You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Account. You must immediately notify us at informationsecurity@intelycare.com if you know or have any reason to suspect that your Account or password have been stolen, misappropriated or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account. You agree not to create any Account if we have previously removed your, or we previously banned you from any of our Solutions, unless we provide written consent otherwise.
2.2 Electronic Communications. By creating an Account, you consent to receive electronic communications from us, including via email, text message, or by posting notices to the App. These communications may include operational notices about your Account or other notices relating to your use of the Solutions. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.
2.3 Shifts Acceptance. After your IP application is approved, when you access the Platform, you may browse Shifts that are requested from Facilities. Each posted Shift will indicate the nature and type of Professional Services requested, the start and end time of the position, the applicable hourly rate or other wage, the location where the Professional Services must be performed, and other information that may be necessary to understand the requirements of the Shift. You may not contact any Facilities or use any information made available through the Solutions for any reason other than for the purposes of fulfilling Professional Services during a Shift you accept in accordance with applicable law and the applicable Facilities’ instructions, procedures, standards and policies.
2.4 Shift Cancellation. You may cancel any request an accepted Shift at least 72 hours prior to the start of such Shift. Excessive cancellations or cancelations within 72 hours prior to the start of a Shift may result in deactivation of your Account and/or other disciplinary actions up to and including termination of employment.
2.5 No Guarantee. IntelyCare does not guarantee the availability of Shifts or the number of Shifts that may be posted through the Solutions.
3. RELATIONSHIP WITH FACILITIES
3.1 No Affiliation. IntelyCare is not a Facility and is not affiliated with any of the Facilities who may use the Solutions. IntelyCare will not exercise any control over the services you provide as an IP at a client site, and IntelyCare will not be required to provide any tools or equipment, that may be needed to perform such services at a client site.
3.2 Facility Policies. You are solely responsible for observing and complying with the applicable policies of the Facility where you are working as an IP, including those relating to patient confidentiality and clinical standards. IntelyCare is not responsible or liable for the actions or inactions of a Facility or any of its personnel in connection with any instructions, directions or other information provided by such Facility, your performance of Professional Services at such Facility, fulfillment of a Shift, or otherwise.
4. PAYMENT
4.1 Payment of Fees and Taxes. When you accept a Shift through the Solutions, you will see the hourly rate that you will be paid during the Shift. Upon acceptance and completion of a Shift, you will be paid such hourly rate for the amount of hours that you work (the “Shift Wage”) subject to adjustments for cancellation (as set forth in Section 4.3 below) and applicable tax withholdings. No additional amounts, other than the Shift Wage as adjusted, shall be due to you for your performance of the Professional Services or fulfilment of any Shift.
4.2 Financial Institution Information. When registering your Account, you agree to enter your financial institution information and hereby agree that IntelyCare and/or our third-party payment processor may transfer the Shift Wages due to you, subject to the adjustments and deductions noted in Section 4.1 above, to your financial institution. You are solely responsible for the accuracy of your financial institution information, including your bank account number and routing information. IntelyCare has no responsibility for any errors in fund transfers or deposits due to inaccurate or incomplete bank account information.
4.3 Shift Cancellations. You acknowledge and agree that Facilities may cancel a Shift that you have accepted and scheduled through the Platform up to two (2) hours prior to the scheduled start of any Shift. In the event that a Facility cancels an accepted and scheduled Shift (a) within two (2) hours of the scheduled start time of the Shift or (b) after you have arrived and begun fulfilling such Shift but prior to completion of the Shift based on the hours noted on the Shift listing, you will be compensated for the greater of (i) three (3) hours and (ii) the total number of hours actually worked, at the applicable rate. Shift cancellation notices will be given through the Platform. You are solely responsible for ensuring the proper notification settings are enabled in your Account to be notified if there has been a change in any Shift you accept. Notwithstanding the foregoing, if you are a California resident, Shift cancellations will be governed by Section 10.4.
4.4 Verification of Shift. Promptly upon completion of any Shift, you shall input into the Platform the Shift record confirmation indicating the start and end time of the Shift; provided that prior to departing the Facility such information is subject to verification by the charge nurse (or equivalent position) of the Facility where you performed such Shift. You must monitor such Shift record verification process through the Platform. IntelyCare shall not have any responsibility to pay for any Shift that was not recorded and verified by the Facility through the Platform prior to your departure from the Facility following completion of the Shift.
4.5 Shift Complaints. If a Facility where you completed a Shift is not satisfied with the Professional Services you provided during such Shift and contacts us relating to such dissatisfaction or if such Facility otherwise issues a complaint with us relating to your performance of Professional Services, including but not limited to, (a) you were incapable of or unwilling to adequately perform the Professional Services agreed to for the Shift in accordance with the Facility’s directions; (b) you failed to comply with safety or health standards that were required for the particular Shift; or (c) you fail to comply with applicable law or the applicable Facility’s standards, policies, practices, and procedures, we will investigate and will contact you for further information regarding the matter. Note that, depending on the results of our investigation, it may result in immediate termination of your employment and your removal from the Platform, at our discretion.
4.6 Overpayment. In the event that you are paid more for any Shift than is called for by the Shift Wage, as adjusted pursuant to these Terms, whether through clerical or technological error or otherwise, you hereby consent to the deduction of such overpayment amounts from future payments due to you, to the extent permitted by applicable law.
4.7 Taxes. All Shift Wages payable to you will be reduced by any tax, payroll deduction or other amounts required to be withheld by IntelyCare pursuant to any applicable law or regulation.
5. Rights We Grant You
5.1 Right to Use Solutions. We hereby permit you to use the Solutions for your personal non-commercial use only, provided that you comply with these Terms in connection with all such use. If any software, content or other materials owned or controlled by us are distributed to you as part of your use of the Solutions, we hereby grant you, a personal, non-assignable, non-sublicensable, non-transferrable, and non-exclusive right and license to access and display such software, content and materials provided to you as part of the Solutions (and right to download a single copy of the App onto your applicable equipment or device), in each case for the sole purpose of enabling you to use the Solutions as permitted by these Terms. Your access and use of the Solutions may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Solutions or other actions that we, in our sole discretion, may elect to take.
5.2 Restrictions On Your Use of the Solutions. You may not do any of the following in connection with your use of the Solutions, unless applicable laws or regulations prohibit these restrictions or you have our written permission to do so: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or otherwise permit any third party to access or use the Solutions, (b) use the Solutions in the operation of a service bureau or similar service for third parties, (c) decompile, reverse engineer, disassemble, decode the Solutions or attempt to do any of the foregoing, (d) download, modify, distribute, transmit, display, perform, reproduce, duplicate, publish, or create derivative works based on the Solutions, (e) copy, frame, or mirror any part or content of the Solutions, (f) access or use the Solutions in order to build a competitive product or service, (g) access or use the Solutions in any manner that could disable, overburden, damage, disrupt or impair the Solutions or interfere with any other party’s access to or use of the Solutions or use any device, software or routine that causes the same, (h) attempt to gain unauthorized access to, interfere with, damage or disrupt the Solutions, accounts registered to other users, or the computer systems or networks connected to the Solutions, (i) circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Solutions, (j) introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into our systems, (k) violate any applicable law or regulation in connection with your access to or use of the Solutions, (l) upload, post, store, distribute, transmit, sell, promote, or provide any information, data, or other material in an illegal manner or in a manner that violates or infringes the intellectual property rights or rights to the publicity or privacy of any third party or (m) access or use the Solutions in any way not expressly permitted by these Terms.
5.3 Use of the App. You are responsible for providing the mobile device, software, wireless plan or Internet connections and/or other equipment or Solutions that you need to download, install and use the App. We do not guarantee that the App can be accessed and used on any particular device or with any particular service plan. We do not guarantee that the App or will be available in, or that orders for Offerings can be placed from, any particular geographic location. As part of the Solutions and to update you regarding the status of deliveries, you may receive push notifications, local client notifications, text messages, picture messages, alerts, emails or other types of messages directly sent to you in connection with the App (“Push Messages”). You acknowledge that, when you use the App, your wireless service provider may charge you fees for data, text messaging and/or other wireless access, including in connection with Push Messages. You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Solutions or through your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). Please check with your wireless service provider to determine what fees apply to your access to and use of the App, including your receipt of Push Messages from IntelyCare.
5.4 Mobile Software from the Apple App Store. The following terms and conditions apply to you only if you are using the App from the Apple App Store. To the extent the other terms and conditions of these Terms are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to your use of the App from the Apple App Store. You acknowledge and agree that these Terms are solely between you and IntelyCare, not Apple, and that Apple has no responsibility for the App or content thereof. Your use of the App must comply with the App Store’s applicable terms of use. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support Solutions with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms. You and IntelyCare acknowledge that Apple is not responsible for addressing any claims of yours or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (a) product liability claims, (b) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation. You and IntelyCare acknowledge that, in the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, IntelyCare, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You must comply with applicable third party terms of agreement when using the App. You and IntelyCare acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as they relate to your use of the App, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
6. Ownership and Content
6.1 Ownership of the Solutions. The Solutions, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under copyright, trademark and other intellectual property laws. You agree that IntelyCare and/or its licensors own all right, title and interest in and to the Solutions (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests. We and our licensors reserve all rights in connection with the Solutions and its content including, without limitation, the exclusive right to create derivative works.
6.2 Ownership of Trademarks. The names “IntelyCare” and “IntelyPro” and all related names, logos, product and service names, designs and slogans are trademarks of IntelyCare or its affiliates or licensors. Other names, logos, product and service names, designs and slogans that appear on the Solutions are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
6.3 Ownership of Feedback. We welcome feedback, comments and suggestions for improvements to the Solutions (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Solutions or in any such Feedback. All Feedback becomes the sole and exclusive property of IntelyCare, and IntelyCare may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to IntelyCare any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.
7. Third Party Solutions and Materials
7.1 Use of Third-Party Materials in the Solutions. Certain Solutions may display, include or make available content, data, information, applications or materials from third parties (“Third-Party Materials”) or provide links to certain third-party websites. By using the Solutions, you acknowledge and agree that IntelyCare is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third-Party Materials or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party Solutions, Third-Party Materials or third-party websites, or for any other materials, products, or Solutions of third parties. Third-Party Materials and links to other websites are provided solely as a convenience to you.
8. Disclaimers, Limitations of Liability and Indemnification
8.1 Disclaimers.
(a) Your access to and use of the Solutions are at your own risk. You understand and agree that the Solutions are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, IntelyCare, its parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners and licensors (the “IntelyCare Entities”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. The IntelyCare Entities make no warranty or representation and disclaim all responsibility and liability for: (a) the completeness, accuracy, availability, timeliness, security or reliability of the Solutions; (b) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Solutions; (c) the operation or compatibility with any other application or any particular system or device; and (d) whether the Solutions will meet your requirements or be available on an uninterrupted, secure or error-free basis. No advice or information, whether oral or written, obtained from the IntelyCare Entities or through the Solutions, will create any warranty or representation not expressly made herein.
(b) THE INTELYCARE ENTITIES TAKE NO RESPONSIBILITY AND ASSUME NO LIABILITY FOR ANY DOCUMENTATION OR OTHER MATERIALS THAT YOU UPLOAD OR STORE ON OR THROUGH OUR SOLUTIONS.
8.2 Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE INTELYCARE ENTITIES BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING INDIRECT SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SOLUTIONS, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOLUTIONS), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SOLUTIONS OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE INTELYCARE ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY AMOUNTS IN EXCESS OF THE AMOUNTS PAID TO YOU FOR YOUR PERFORMANCE OF PROFESSIONAL SERVICES FOR SHIFTS ACCEPTED THROUGH THE SOLUTIONS IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM. SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU.
9. Arbitration Agreement
9.1 This Section 9 constitutes an arbitration agreement (hereafter, “Arbitration Agreement”). For all claims covered by this Arbitration Agreement, you and IntelyCare waive all rights to bring such claims in court and waive all rights to trial in court before a judge or jury. Instead, except as provided below, IntelyCare and you (on behalf of yourself and your heirs, spouse, successors, assigns, representatives, and agents) agree all legal disputes and claims between IntelyCare and you shall be determined exclusively by final and binding individual arbitration.
9.2 Informal Process. At times disputes can arise in the workplace. We encourage all employees to take advantage of opportunities to resolve disputes as early as possible, including by bringing any concerns to management or human resources.
9.3 Arbitration. Except as provided below in this Section 9, all legal disputes, controversies, or claims between you and IntelyCare (collectively, “Claims”) relating to your employment or other relationship with IntelyCare (including application for or termination of employment or other relationship or any background check form or process) or relating in any way to your use of IntelyCare’s Solutions and/or products will be resolved by arbitration. Claims subject to this Arbitration Agreement include claims against the IntelyCare Entities; any entity with which any IntelyCare Entity is alleged to be a joint or co-employer; or each of their respective clients, customers, owners, directors, officers, employees, or agents, whether current, former, or future, as all these individuals and entities are third-party beneficiaries of this Arbitration Agreement, are entitled to the rights and benefits under it, and may enforce it as if they were parties. The term “Company” in this Section 9 encompasses these individuals and entities to allow them to obtain the full benefits of this Arbitration Agreement. Nothing herein shall be interpreted to suggest any particular entity or person is or will be your employer or joint employer.
9.4 Excluded Claims. The only legal disputes or claims excluded from this Arbitration Agreement are those: (a) constituting sexual harassment or sexual assault disputes as defined by the Federal Arbitration Act (“FAA”); (b) by you for workers’ compensation benefits, unemployment benefits, or benefits under a plan that provides its own process for dispute resolution; (c) by either you or the Company seeking only a provisional remedy in a court of competent jurisdiction, including on the ground that an arbitration award may be rendered ineffectual without provisional relief; (d) for which this Arbitration Agreement would be invalid or prohibited under federal law, or state or local law that is not preempted by federal law; (e) to compel arbitration, or enforce, modify, or vacate an arbitrator’s award ; (f) filed by you, or on your behalf in a class or collective action, prior to your acceptance of this Arbitration Agreement; or (g) filed with a federal, state, or local administrative agency such as the Equal Employment Opportunity Commission, National Labor Relations Board, or similar agency, although you knowingly and voluntarily waive the right to file, or participate or obtain relief in, a lawsuit against the Company filed in a court, except as described herein.
9.5 This Arbitration Agreement is governed by the FAA and not any state arbitration law to the maximum extent permitted by law.
9.6 To the maximum extent permitted by law, the parties agree that if you bring a sexual harassment or sexual assault dispute (as defined in the FAA), all claims other than a sexual harassment or sexual assault claim shall be presented in (or if not presented in, severed into) a separate proceeding from the sexual harassment or sexual assault claims.
9.7 A party wishing to initiate arbitration shall submit the matter to the American Arbitration Association (“AAA”), and an arbitrator shall be selected pursuant to AAA’s selection procedure. The arbitrator shall administer the arbitration according to AAA’s Employment Arbitration Rules (or successor rules) (which can be requested from the Company or found at www.adr.org), this Arbitration Agreement, and Federal Rule of Civil Procedure 68. If AAA’s rules are inconsistent with this Arbitration Agreement, this Arbitration Agreement shall govern
9.8 Except as required by Sections 9.9 and 9.10 and applicable law, the arbitrator shall have the exclusive authority to resolve any dispute regarding the enforceability, applicability, or interpretation of this Arbitration Agreement. The arbitration will be held in or near the city in which you last worked for (or if you never worked for the Company, the city in which you initially applied for work with) the Company. The arbitrator shall apply, and not deviate from, the substantive law of the state in which the claim(s) arose and/or federal law, as applicable, and the statute of limitations for each cause of action if it had been filed in court. The arbitrator shall have the authority to issue subpoenas to compel the production of documents during discovery and the attendance of witnesses at the arbitration hearing and shall render a written award setting forth findings of fact and conclusions of law. Judgment upon the arbitrator’s award may be entered in any court of competent jurisdiction.
9.9 Individualized Arbitration & Class Action Waiver. To the maximum extent permitted by law, the arbitrator is prohibited from (a) consolidating or joining the claims of others, or claims based on alleged legal violations suffered by others, into one proceeding, (b) fashioning a proceeding as a class, collective, joint, or group action involving claims of or legal violations suffered by one or more other claimants, or (c) awarding relief to, on behalf of, or based on the claims of or legal violations suffered by multiple claimants or individuals (subparts (a) through (c) are referred to collectively as “Class Action”). The parties waive any right to proceed in a Class Action. Any dispute concerning the scope or validity of this paragraph shall be decided by a court of competent jurisdiction and not the arbitrator. If a court determines any portion of this paragraph is unenforceable, and if applicable such ruling is upheld on appeal, the portion ruled unenforceable shall be modified or severed to the narrowest extent possible pursuant to Section 9.13, but under no circumstances will the arbitrator be permitted to hear a Class Action.
9.10 Private Attorneys General Act Claims. The parties intend for this Arbitration Agreement’s requirement of individual arbitration to extend to the fullest extent possible to claims brought pursuant to the California Private Attorneys General Act, Labor Code § 2698 et seq. (“PAGA”) and any similar state statute. To the maximum extent permitted by law, if a claim is pursued under PAGA or similar statute, it must be pursued individually in arbitration. The arbitrator may not allow a PAGA or similar claim to proceed in arbitration except as to an individual claim, and any non-individual claims under PAGA or similar state statute that can proceed in court apart from an individual claim must be stayed while the individual claim proceeds in arbitration. Any dispute concerning the scope or validity of this paragraph shall be decided by a court of competent jurisdiction and not the arbitrator. If a court determines any portion of this paragraph is unenforceable, and if applicable such ruling is upheld on appeal, the portion ruled unenforceable shall be modified or severed to the narrowest extent possible pursuant to Section 9.12, but under no circumstances will the arbitrator be permitted to hear a PAGA or similar claim on a non-individual basis.
9.11 Costs of Arbitration. The Company will pay all costs unique to arbitration, including the arbitration fees and expenses required under this Arbitration Agreement. However, if you initiate a claim, you shall be responsible for contributing an amount equal to the filing fee in your home state, unless the arbitrator determines such fee should be waived. Invoices from any arbitration service or arbitrator issued in conformance with this Arbitration Agreement shall be due 60 days following receipt of the invoice. Except as provided in Federal Rule of Civil Procedure 68 or as determined by the arbitrator in accordance with applicable law, each party shall pay its own attorneys’ fees and any costs that are not unique to the arbitration. The arbitrator may award reasonable fees and costs or any portion thereof to the prevailing party to the same extent a court would be entitled to do so, in accordance with applicable law.
9.12 Others Terms Applicable to this Arbitration Agreement. This Arbitration Agreement is the complete agreement between the parties on the subjects herein and supersedes any other understandings on such subjects, except that if there is another written arbitration agreement between the parties it shall survive this Arbitration Agreement to the extent it allows for only individual arbitration. No other representations are being relied upon by either party. This Arbitration Agreement cannot be orally modified and shall remain in effect even after the termination of your employment or other association. If any paragraph, phrase, word, or other portion of this Arbitration Agreement (collectively, “Term”) is deemed invalid or unenforceable, such Term shall be modified automatically to the minimum extent necessary to render this Arbitration Agreement valid and enforceable for individual arbitration. Except as otherwise provided in Sections 9.9 and 9.10, if a Term conflicts with a mandatory provision of applicable law that is not preempted by the FAA, or conflicts with the FAA, the conflicting provision shall be severed automatically and the remainder construed to incorporate the mandatory provision. In the event of such modification or severance, the remainder shall not be affected. This Arbitration Agreement shall be construed as a whole, according to it fair meaning, and not for or against any party. Additionally, this Arbitration Agreement does not constitute a guarantee of employment for any fixed period or alter the at-will nature of any employment relationship
9.13 Exceptions. Notwithstanding anything in these Terms to the contrary, the parties may instead assert their Claims in “small claims” court, but only if the Claims qualify, any such Claim remains only in such court, and the Claim remains on an individual, non-representative and non-class basis. If any of these conditions is not or ceases to be met, the opposing party may enforce this Arbitration Agreement with respect to such Claim(s).
9.14 Termination or Amendment of Arbitration Agreement. This Section 9.14 applies specifically to the Arbitration Agreement and irrespective of Section 10 below.
(a) The Company may propose termination or amendment of the Arbitration Agreement by providing electronic notice to you, including by posting changes the Terms . You indicate your agreement to the proposed amendment or termination of this Arbitration Agreement, and such proposed change becomes effective as to you, by commencing employment or, if currently employed, continuing your employment with the Company for a period of 30 days after notice is provided.
(b) Termination or amendment will not affect a covered Claim as to which arbitration had already been initiated when the termination or amendment was proposed.
(c) If a proposed termination or amendment is determined not to be effective in whole or part for any reason, including lack of sufficient notice, lack of agreement, invalidity of a Arbitration Agreement provision or otherwise, the Arbitration Agreement as it existed at the time of the proposed termination or amendment shall remain in effect to the extent that the proposed termination or amendment is determined not to be effective.
10. ADDITIONAL PROVISIONS
10.1 Updating These Terms. We may modify these Terms from time to time in which case we will update the “Last Revised” date at the top of these Terms. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by push notification, e-mail and/or in the App. However, it is your sole responsibility to review these Terms from time to time to view any such changes. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Solutions after the modifications have become effective will be deemed your acceptance of the modified Terms.
10.2 Termination of License and Your Account. If you breach any of the provisions of these Terms, your employment offer letter, employee handbook or the Marketplace Rules, we may immediately suspend, disable or delete your Account and all licenses granted by us hereunder will terminate automatically. If we delete your Account for any suspected breach by you of these Terms, your employment offer letter, or the Marketplace Rules, you are prohibited from re-registering for the Solutions under a different name. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms by IntelyCare or you. Termination will not limit any of IntelyCare’s other rights or remedies at law or in equity.
10.3 Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to IntelyCare for which monetary damages would not be an adequate remedy and IntelyCare shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
10.4 California Residents. If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Solutions of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210. In addition, in the event of a Shift cancellation in California as provided in Section 4.2, IntelyPros will receive (a) three (3) hours of compensation at the applicable Shift rate if the Shift is cancelled within two (2) hours of the scheduled start time or (b) the greater of (i) four (4) hours and (ii) the total number of hours actually worked, at the applicable rate, if the Shift is cancelled after you have arrived at the Facility.
10.5 Miscellaneous. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and the licenses granted hereunder may be assigned by IntelyCare but may not be assigned by you without the prior express written consent of IntelyCare. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. The Solutions are operated by us in the United States. Those who choose to access the Solutions from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. These Terms are governed by the laws of the Commonwealth of Massachusetts, without regard to conflict of laws rules, and the proper venue for any disputes arising out of or relating to any of the same will be the arbitration venue set forth in Section 9, or if arbitration does not apply, then the state and federal courts located in the Commonwealth of Massachusetts.
10.6 How to Contact Us. You may contact us regarding the Solutions or these Terms at: 1250 Hancock Street, Quincy, MA 02169, or by e-mail at legal@intelycare.com.