Terms of Use
Last Updated Date: February 23, 2023
Please read this Terms of Use Agreement (the “Terms of Use”) carefully. The website located at https://www.tailorcare.com/ and its publicly-available subdomains (collectively, the “Website”), the information on the Website, and the services and resources available or enabled via the Website (each a “Service” and collectively, the “Services”), are controlled by TailorCare, Inc. (“Tailorcare”). These Terms of Use along with all Supplemental Terms that may be presented to you for your review and acceptance (collectively, the “Agreement”), govern your access to and use of the Services.
By browsing the Website, or otherwise accessing or using any of the Services, you represent that (1) you have read, understand, and agree to be bound by the Agreement and our Privacy Policies, (2) you are of legal age to form a binding contract with TailorCare, and (3) you have the authority to enter into the agreement. The term “you” refers to the individual accessing or using the Services. If you do not agree to be bound by the Agreement, you may not access or use any of the Services.
You acknowledge that the Terms of Use governs your access to and use of our informational Website and does not govern your access to or use of any product offering made available by TailorCare. Therefore, your use of, and participation in, certain Services referenced through the Website (including any TailorCare product offering) may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.
Please be aware that the section of the Agreement below entitled “Dispute Resolution” contains provisions governing how any disputes between us will be resolved. In particular, it contains an Arbitration Agreement which will, with limited exceptions, require Disputes between us to be submitted to binding and final arbitration. Unless you opt out of the Arbitration Agreement: (1) you will only be permitted to pursue claims and seek relief against us on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and (2) you are waiving your right to pursue claims and seek relief in a court of law and to have a jury trial.
Please be aware that the section of the Agreement below entitled “TailorCare Communications” contains your opt-in consent to receive communications from us, including, as applicable, via e-mail and calls.
Please note that the Agreement is subject to change by TailorCare in its sole discretion at any time. When changes are made, TailorCare will make a copy of the updated Agreement available at the Website and update the “Last Updated Date” at the top of these Terms of Use. If we make any material changes to the Agreement, we will provide notice of such material changes on the Website. Any changes to the Agreement will be effective immediately for new users of the Services and will be effective for existing users upon thirty (30) days after the “Last Updated Date” at the top of these Terms of Use. If you do not agree to the updated Agreement, you must stop using all Services upon the effective date of the updated Agreement. Otherwise, your continued use of any of the Services after the effective date of the updated Agreement constitutes your acceptance of the updated Agreement. Please regularly check the Website to view the then-current Agreement. You agree that TailorCare’s continued provision of the Services is adequate consideration for the changes in the update Agreement.
Index
Use of the services
The Services, and the information and content available on them, are protected by applicable intellectual property laws. TailorCare and its licensors reserve all right, title, and interest in and to the Services, and the information and content available on them, that are not expressly granted herein. Subject to the terms of this Agreement, TailorCare grants you a non-transferable, non-exclusive, revocable, limited license to access and use the Website for your own personal use or internal business use.
Medical Disclaimer: The content and materials provided on the Website are for informational and educational purposes only, and do not include the diagnosis or treatment of any medical condition. Any such information or any advice or other materials provided through the Website should not be considered medical advice. Please consult your health care professionals for advice regarding your specific medical conditions and to answer your questions regarding your health and medical treatment.
Certain Restrictions: The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any of the Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other parts of the Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using TailorCare’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Agreement. TailorCare, its suppliers and service providers reserve all rights not granted in the Agreement.
TailorCare Communications: By entering into the Agreement or using the Services, you agree to receive communications from us, including via e-mail. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning TailorCare and industry developments. If you wish to opt out of promotional emails, you can unsubscribe from our promotional email list by following the unsubscribe options in the promotional email itself.
Responsibility for content
You acknowledge that all information, data, text, software, content, sound, photographs, graphics, video, messages, tags and other materials accessible through the Services (collectively, “Content”) is the sole responsibility of the party from whom such Content originated. This means that you, and not TailorCare, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available through the Services (“Your Content”).
Our Services are not designed to process any health information. Please do not submit any health information to or through the Website or Services. We will not be responsible or liable for any processing of your health information that you submit in violation of this section.
Ownership
Services: Except with respect to Your Content, you agree that TailorCare and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and TailorCare software). You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.
Trademarks:
and TailorCare’s name and all related stylizations, graphics, logos, service marks and trade names used on or in connection with any Services are the trademarks of TailorCare and may not be used without permission in connection with your, or any third-party, products or services. Third party trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
Your Content: TailorCare does not claim ownership of Your Content. However, when you post or publish Your Content on or in any Services, you represent that you own or have all necessary rights to post or publish Your Content on or in the Services.
License to Your Content: You grant TailorCare a fully paid, royalty-free, worldwide, non-exclusive right (including any moral rights) and license to use Your Content (in whole or in part) for the purposes of operating and providing the Services to you, including to provide you with newsletters and updates regarding our products and services when you sign up for such updates. You agree that you, not TailorCare, are responsible for all of Your Content.
Feedback: You agree that submission of any ideas, suggestions, documents, and/or proposals to TailorCare through its contact, suggestion, feedback, or similar pages (“Feedback”) is at your own risk and that TailorCare has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to TailorCare a fully paid, royalty-free, perpetual, irrevocable, worldwide, and non-exclusive right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or TailorCare’s business.
User conduct
As a condition of use, you agree not to use any of the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) make available any Content on or through the Services that: (i) infringes, misappropriates or otherwise violates any intellectual property right, right of publicity, right of privacy or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without TailorCare’s prior written consent; (v) impersonates any person or entity, including any employee or representative of TailorCare; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services.
Third-party services
The Website may contain links to third-party websites, applications, and/or advertisements (collectively, “Third-Party Services”). When you click on a link to a Third-Party Service, we may not warn you that you have left the Website and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Services are not under the control of TailorCare. TailorCare is not responsible for any Third-Party Services. TailorCare provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith. You use all links in Third-Party Services at your own risk. When you leave our Website, the Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
Indemnification
You agree to indemnify and hold TailorCare, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “TailorCare Party” and collectively, the “TailorCare Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of any Service in violation of the Agreement; (c) your violation of any rights of another party; or (d) your violation of any applicable laws, rules or regulations. TailorCare reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to fully cooperate with TailorCare in asserting any available defenses. This provision does not require you to indemnify any of the TailorCare Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this section will survive any termination of the Agreement and/or your access to the Services.
Disclaimer of warranties and conditions
As Is: You expressly understand and agree that to the extent permitted by applicable law, your use of the Services (including any information or content available thereon) is at your sole risk, and the Services are provided on an “as is” and “as available” basis, with all faults. TailorCare expressly disclaims all warranties, representations, and conditions of any kind, whether express or implied, including, but not limited to, the implied warranties or conditions of merchantability, fitness for a particular purpose and non-infringement arising from use of the Services.
- TailorCare makes no warranty, representation or condition that: (1) the Services will meet your requirements; (2) your use of the Services will be uninterrupted, timely, secure or error-free; or (3) the results that may be obtained from use of the Services will be accurate or reliable.
- No advice or information, whether oral or written, obtained from TailorCare or through the Services will create any warranty not expressly made herein.
No Liability for Conduct of Third Parties: You acknowledge and agree that TailorCare parties are not liable, and you agree not to seek to hold TailorCare parties liable, for the conduct of third parties, including operators of external sites and other users of the Services, and that the risk of injury from such third parties rests entirely with you.
Materials Available through the Services: As a part of the Services, you may have access to materials that are owned, created, or otherwise made available by TailorCare or another party. You agree that TailorCare does not endorse, guarantee or recommend such materials and that you access these materials at your own risk. TailorCare does not assume responsibility for the accuracy, efficacy, or veracity of any content posted by TailorCare or by third parties or any of its users that are made available through the Services.
Limitation of liability
Disclaimer of Certain Damages: You understand and agree that, to the fullest extent provided by law, in no event shall TailorCare parties be liable for any loss of profits, revenue or data, indirect, incidental, special, or consequential damages, or damages or costs due to loss of production or use, business interruption, or procurement of substitute goods or services, in each case whether or not TailorCare has been advised of the possibility of such damages, arising out of or in connection with the Agreement or any communications, interactions or meetings with other users of the Services, on any theory of liability. The foregoing limitation of liability shall not apply to liability of a TailorCare party for (i) death or personal injury caused by a TailorCare party’s negligence; or for (ii) any injury caused by a TailorCare party’s fraud or fraudulent misrepresentation.
Cap on Liability: To the fullest extent provided by law, TailorCare parties will not be liable to you for more than the greater of (a) $100; or (b) the remedy or penalty imposed by the statute under which such claim arises. The foregoing cap on liability shall not apply to liability of a TailorCare party for (i) death or personal injury caused by a TailorCare party’s negligence; or for (ii) any injury caused by a TailorCare party’s fraud or fraudulent misrepresentation.
Content: Except for TailorCare’s obligations to protect your personal data as set forth in TailorCare’s Privacy Policy, TailorCare assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any content (including, but not limited to, your content), user communications or personalization settings.
Exclusion of Damages: Certain jurisdictions do not allow the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above exclusions or limitations may not apply to you, and you might have additional rights.
Basis of the Bargain: The limitations of damages set forth above are fundamental elements of the basis of the bargain between TailorCare and you.
Monitoring and enforcement
TailorCare reserves the right to take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services and/or terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement.
If TailorCare becomes aware of any possible violations by you of the Agreement, TailorCare reserves the right to investigate such violations. If, as a result of the investigation, TailorCare believes that criminal activity has occurred, TailorCare reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. TailorCare is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including Your Content, in TailorCare’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of TailorCare or the public, and all enforcement or other government officials, as TailorCare in its sole discretion believes to be necessary or appropriate.
Term and termination
Term: The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.
Prior Use: Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Agreement, and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with the Agreement.
Termination of Services by TailorCare: If you have materially breached any provision of the Agreement or if TailorCare is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), TailorCare has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in TailorCare’s sole discretion and that TailorCare shall not be liable to you or any third party for any termination of your access to the Services or your rights under these Terms.
Termination of Services by You: You may terminate this Agreement at any time by ceasing your use of the Services.
Effect of Termination: Termination of any Service includes removal of access to such Service and barring of further use of the Service. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. TailorCare will not have any liability whatsoever to you for any suspension or termination. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
No Subsequent Access or Use: If this Agreement is terminated by TailorCare due to your violation of any portion of the Agreement or for conduct otherwise inappropriate, then you agree that you shall not attempt to access or use the Services again. In the event that you violate the immediately preceding sentence, TailorCare reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
International users
The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that TailorCare intends to announce such Services or Content in your country. The Services are controlled and offered by TailorCare from its facilities in the United States of America. TailorCare makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
Dispute resolution
Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires U.S. users to arbitrate disputes with TailorCare and limits the manner in which you can seek relief from us.
Applicability of Arbitration Agreement: Subject to the terms of this Arbitration Agreement, you and TailorCare agree that any dispute, claim, or disagreement 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 the Agreement, including claims and disputes that arose between us before the effective date of the Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and TailorCare may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or TailorCare 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 the Agreement as well as claims that may arise after the termination of the Agreement.
Informal Dispute Resolution: There may be instances when a Dispute arises between you and TailorCare. If that occurs, TailorCare is committed to working with you to reach a reasonable resolution. You and TailorCare agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and TailorCare therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to TailorCare that you intend to initiate an Informal Dispute Resolution Conference should be sent to: 167 N Green St, St 1002, Chicago, IL 60607. The Notice must include: (1) your name, telephone number, mailing address, and 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.
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. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
Waiver of Jury Trial: You and TailorCare 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 TailorCare are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class and Other Non-Individualized Relief: You and TailorCare agree that, except as specified in the subsection entitled “batch arbitration,” each of us may bring claims against the other only on an individual basis and not on a class, representative, or collective basis, and the parties hereby waive all rights to have any Dispute be brought, heard, administered, resolved, or arbitrated on a class, collective, representative, or mass action basis. Only individual relief is available, and Disputes of more than one customer or user cannot be arbitrated or consolidated with those of any other customer or user. 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 subsection entitled “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, that the limitations of this subsection, “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 TailorCare 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 Delaware. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or TailorCare from participating in a class-wide settlement of claims.
Rules and Forum: The 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 and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and TailorCare agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS rules.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request 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 has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request 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.
Unless you and otherwise agree, or the Batch Arbitration process discussed in the subsection entitled “Batch Arbitration” is triggered, the arbitration will be conducted in the county where you reside. Subject to the applicable JAMS rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration.
You and TailorCare 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 then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
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 the JAMS roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then JAMS will appoint the arbitrator in accordance with the applicable JAMS rules, provided that if the Batch Arbitration process under the subsection entitled “Batch Arbitration” is triggered, JAMS will appoint the arbitrator for each batch.
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 for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “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; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” 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.
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 Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or TailorCare need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
Batch Arbitration: To increase the efficiency of administration and resolution of arbitrations, you and TailorCare agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against TailorCare by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), JAMS shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests 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 JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“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 TailorCare.
You and TailorCare agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, 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.
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 following address: 167 N Green St, St 1002, Chicago, IL 60607, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, any e-mail you have submitted to us through the Website or Services, and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms of Service 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, or may enter in the future, with us.
Invalidity, Expiration: Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief,” if any part or parts of this Arbitration Agreement 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. You further agree that any Dispute that you have with TailorCare as detailed in this Arbitration Agreement must be initiated via arbitration 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.
Modification: Notwithstanding any provision in the Agreement to the contrary, we agree that if TailorCare makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to TailorCare at: 167 N Green St, St 1002, Chicago, IL 60607, your continued use of the Services, including the acceptance of products and services offered on or through the Services, following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of the Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes 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 the Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to the Agreement) remain in full force and effect. TailorCare will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of the Agreement.
General provisions
Any Dispute, claim or request for relief relating in any way to your use of the Services will be governed and interpreted by and under the laws of the state of Delaware, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this agreement.
Exclusive Venue: To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and TailorCare agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the State of California.
Electronic Communications: The communications between you and TailorCare may take place via electronic means, whether you visit the Services or send TailorCare e-mails, or whether TailorCare posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from TailorCare in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that TailorCare provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
Assignment: The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without TailorCare’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Force Majeure: TailorCare shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Questions, Complaints, Claims: If you have any questions, complaints or claims with respect to the Services, please contact us at: info@tailorcare.com or 167 N Green St, St 1002, Chicago, IL 60607. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
Choice of Language: It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
Notice: Where TailorCare requires that you provide an e-mail address, you are responsible for providing TailorCare with your most current e-mail address. In the event that the last e-mail address you provided to TailorCare is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, TailorCare’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to TailorCare at the following address: 167 N Green St, St 1002, Chicago, IL 60607. Such notice shall be deemed given when received by TailorCare by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Waiver: Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability: If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
Export Control: You may not use, export, import, or transfer any Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by TailorCare are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer TailorCare products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
Consumer Complaints: In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services 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.
Entire Agreement: The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
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