Terms of Service

I. Introduction

Prosperity Medical, LLC. d/b/a Kinwell (“Kinwell,” “we,” “our,” or “us”) owns and operates the Kinwell website available at www.kinwellaid.com and the Kinwell mobile application, described in more detail below (collectively, the “Site”). These Terms of Service (the “Terms”) govern your use of the Site, including any materials, data, information, and content available through them, and certain other services described in these Terms that are made available through the Site.

Please also review our Privacy Policy, which these Terms incorporate by reference in its entirety, to understand how we collect, use, share and protect your information.

Note: These Terms limit the remedies available to you in the event of certain disputes and contain a mandatory arbitration provision that requires the use of arbitration on an individual basis, and not by a lawsuit. Please see section XIII below for more information.

PLEASE REVIEW THE TERMS CAREFULLY BEFORE USING OUR SITE. YOU UNDERSTAND THAT BY CLICKING “I ACCEPT”, “I AGREE”, OR SIMILAR, OR BY ACCESSING OR USING THE SITE, YOU ACKNOWLEDGE THAT YOU (1) HAVE READ, UNDERSTOOD, AND AGREE TO BE LEGALLY BOUND BY AND COMPLY WITH THESE TERMS; (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH US; AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS OF USE PERSONALLY. IF YOU DO NOT OR CANNOT AGREE WITH ANY PART OF THESE TERMS, YOU MAY NOT USE THE SITE. THE TERMS ARE SUBJECT TO CHANGE AS PROVIDED IN SECTION XVI.

You are welcome to contact us at support@kinwellaid.com with any questions or concerns before using our Site.

II. Your Relationship with Kinwell

Kinwell hires and pays family caregivers through Michigan Medicaid — either the Home Help Program or, for dual-eligible individuals, a coordinated care plan such as MI Coordinated Health. Kinwell assists with the required applications and paperwork but is not a government agency and does not determine eligibility or approve applications. Eligibility decisions are made by the Michigan Department of Health and Human Services (“MDHHS”) for Home Help, or by the applicable health plan for those enrolled in a coordinated care program.

All material, information, data, and content that Kinwell provides through our Site or services is for general informational purposes only and is not intended to substitute for professional medical advice, diagnosis, or treatment. We may help facilitate access to telehealth services; but we do not provide medical services, including telehealth services. You should always consult with a licensed healthcare provider or other qualified healthcare professional regarding questions about any medical condition before making healthcare decisions. Our Site and services are not intended for use in a medical emergency. If you think you may have a medical emergency, call your doctor, local emergency room, or 911 immediately. Never delay seeking professional medical advice or attention because of something you have read on the Site.

Our services are intended for care recipients and caregivers seeking assistance with Michigan Medicaid caregiver programs, including the Home Help Program and coordinated care plans such as MI Coordinated Health. By using our services, you represent that all information you provide is accurate, complete, and truthful. You agree to provide accurate and complete information, not submit false or fraudulent information, and use the services only for lawful purposes. You are responsible for maintaining the confidentiality of any account information associated with your use of the services.

By submitting information through Kinwell, you authorize Kinwell to:

• review your information to assess potential eligibility for Michigan's Home Help Program or a coordinated care plan such as MI Coordinated Health;
• access, review, and use information necessary to complete or support the application, including relevant medical, functional, and health information, and prepare and submit application materials to MDHHS or the applicable health plan, including, as applicable, DHS-390, MSA-4676, MDHHS-6200, MSA-204, and related supporting information;
• communicate with MDHHS, local county offices, or the applicable health plan regarding the application; and
• coordinate any required in-home assessments.

We expect that most care recipients will submit their own information and sign the forms required; however, if you are a caregiver and submit information for a care recipient or sign on behalf of a care recipient, you represent that you have legal authority to sign on behalf of the care recipient to authorize the release and submission of application-related medical, functional, and health information to MDHHS or the applicable health plan.

Kinwell does not guarantee approval of any application. Eligibility determinations are made by MDHHS or the applicable health plan, as described above. Kinwell provides application assistance only.

III. Account Registration and Security

When you visit the Site, you may have the option to register for a user account, which may be required in order for you to access some of the services we provide. When you enter any information into the Site, including during the registration process, you agree to provide complete, accurate information and to update such information as necessary to ensure that it remains complete, accurate, and up-to-date.

If you create an account, you will be asked to create a username and password, which you will be solely responsible for safeguarding. You agree not to disclose your password to any third party, and you agree to notify us immediately at support@kinwellaid.com if you suspect or become aware of any unauthorized use of your account. You further acknowledge and agree that you will be solely responsible for any activities or actions on or through your account, whether or not you have authorized such activities or actions. We will not be liable for any loss or damage arising from your failure to comply with these requirements. We reserve the right to disable any username, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our sole opinion, you have violated any provision of these Terms. If you are entitled by law to any information you entered into your account and it has been disabled, please contact us in writing to request such information.

IV. Prohibited Uses

You may use the Site only for lawful purposes and in accordance with these Terms.

You agree not to use the Site:

• In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
• For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
• To send, knowingly receive, upload, download, use, or re-use any material that is offensive, harmful, infringing, obscene, defamatory, abusive, deceptive, untrue, misrepresentative, or illegal.
• To transmit, or procure the sending of, any advertising or promotional material, including circulation of a chain letter or junk mail.
• To impersonate or attempt to impersonate Kinwell, a Kinwell employee, another user, a Kinwell partner, or any other person or entity.
• In any way that violates, infringes upon, or misappropriates a Kinwell or any third party's rights, including without limitation infringements of third-party intellectual property rights and violations of third-party rights to privacy.
• In any way that implies an affiliation with or endorsement by Kinwell.
• To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Site, or which, as determined by us, may harm Kinwell or users of the Site or expose them to liability.

Additionally, you agree not to:

• Use the Services in any manner that could disable, overburden, damage, or impair the Site or interfere with any other party's use of the Site.
• Use any robot, spider, or other automatic device, process, or means to access the Site for any purpose, including monitoring or copying any of the content or other material on the Site.
• Use any manual process to monitor or copy any of the content or material on the Site, or for any other purpose not expressly authorized in these Terms, without our prior written consent.
• Use any device, software, or routine that interferes with the proper working of the Site.
• Engage in phishing, harvesting or spamming, or introduce or circulate any viruses, spyware, Trojan horses, worms, logic bombs, Easter eggs, keystroke loggers, time bombs, or other material that is malicious or technologically harmful.
• Attempt to gain unauthorized access to, interfere with, damage, or disrupt any part of the Site, the server on which the Site is stored, or any server, computer, or database connected to the Site.
• Attack the Site via a denial-of-service attack or a distributed denial-of-service attack.
• Otherwise attempt to interfere with the proper working of the Site.

V. Ownership and License

Ownership. As between Kinwell and you, Kinwell is the sole and exclusive owner of all right, title, and interest in and to the Site and its content, features, and functionality (including, without limitation, all information, software, text, displays, images, video, audio, design, selection, arrangement, and look and feel) (the “Site Content”), and any associated copyrights, patents, or other protected or unprotected intellectual property rights. You are not permitted to reproduce, publish, distribute, modify, reverse engineer, disassemble, create derivative works of, publicly display, publicly perform, republish, download, store, transmit, sell, or participate in any sale of, or exploit in any way, in whole or in part, any of the Site or Site Content except as permitted by these Terms or otherwise by Kinwell expressly in writing. Any copy, modification, revision, enhancement, adaptation, translation, or derivative work of the Site or Site Content shall be owned solely and exclusively by Kinwell or its licensors, including all intellectual property rights therein. You may not access or use for any commercial purposes any part of the Site or Site Content.

Certain names, logos, and other materials displayed in and through the Site may constitute trademarks, trade names, service marks, or logos (“Marks”) of Kinwell or its affiliates. You are not authorized to use any such Marks without the express written permission of Kinwell. Ownership of all such Marks and the goodwill associated therewith remains with us or our affiliates.

Your License. Subject to your compliance with these Terms, we hereby grant to you a personal, limited, revocable, non-exclusive, and nontransferable right to view, download, access, and use Site and Site Content solely for your personal and non-commercial use and only as permitted under these Terms. No other right, title, or interest in or to the Site or Site Content is transferred to you, and all rights not expressly granted are reserved by Kinwell or its licensors.

VI. User Content and Feedback

You represent, warrant, and agree that any data or information you submit on or through the Site, whether by direct entry, submission, email, or otherwise, including, but not limited to, data, questions, comments, forum communications, or suggestions/feedback (collectively, “User Content”) does not violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity, or other personal, intellectual property rights or other proprietary rights, breaches or conflicts with any obligation, such as a confidentiality obligation, or contains libelous, defamatory, or otherwise unlawful material. You acknowledge, represent, and agree that User Content is submitted voluntarily and is not confidential or proprietary (although will be afforded any confidentiality protections under applicable law), and that User Content does not establish a relationship between you and us.

You hereby grant Kinwell, our service providers, our successors and assignees the fully transferable and sublicensable right and license to use, reproduce, modify, analyze, perform, display, distribute, and otherwise disclose to third parties, including, as applicable and unless prohibited by law, to provide the Site to you, market our services to you, conduct research or analyses of such data, operate our business, and design, develop, implement, modify and/or improve current or future features, products, and services.

You represent and warrant that you have all the rights necessary to grant the rights in this Section VI and that our use of User Content does not violate any law. You understand that any User Content you publish in public forums will be viewable and copyable by other users of the forum and potentially the public at large.

VII. Linked Services; Third Party Materials

The Site may provide access to websites, information, products, services, and other materials made available by third parties (“Third-Party Materials”). We are not responsible for any Third-Party Materials (including their accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness, or safety, or any intellectual property rights contained in them). We do not have any obligation to monitor Third-Party Materials, and we may block or disable access to any Third-Party Materials (in whole or part) available through the Site at any time. The availability of any Third-Party Materials through the Site is not an endorsement of them by Kinwell, and it does not imply any affiliation with any provider of Third-Party Materials. Your use of Third-Party Materials is at your own risk and is subject to any additional terms, conditions, and policies applicable to the Third-Party Materials (like their terms of service or privacy policies).

VIII. Termination

Kinwell may, in its sole discretion, terminate or suspend your access to or use of the Site without notice for any reason, including, without limitation, if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms. Upon termination, all provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, intellectual property provisions, warranty disclaimers, indemnity, and limitations of liability.

IX. No Representations or Warranties

YOU EXPRESSLY AGREE THAT USE OF THE SITE IS AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. KINWELL AND EACH OF ITS RESPECTIVE OWNERS, SHAREHOLDERS, OFFICERS, DIRECTORS, MANAGERS, PARTNERS, EMPLOYEES, AND AGENTS (COLLECTIVELY “RELATED PERSONS”) MAKE NO REPRESENTATIONS OR WARRANTIES AND EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NONINFRINGEMENT, TITLE, AVAILABILITY, SECURITY, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, FREEDOM FROM VIRUSES OR MALWARE, COMPLETENESS, TIMELINESS, FUNCTIONALITY, RELIABILITY, SEQUENCING, OR SPEED OF DELIVERY OR SYSTEM INTEGRATION. WE MAKE NO WARRANTIES OR REPRESENTATIONS THAT YOUR USE OF THE SITE WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER KINWELL NOR ITS RELATED PERSONS WILL BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE SITE. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, TIMELINESS, RELIABILITY, OR USEFULNESS OF THE SITE, SITE CONTENT, AND USER CONTENT. FURTHERMORE, KINWELL DOES NOT GUARANTEE THAT THE SITE WILL BE UNINTERRUPTED, OR FREE FROM ERROR, DEFECT, LOSS, DELAY IN OPERATION, CORRUPTION, CYBER ATTACK, VIRUSES, INTERFERENCE, HACKING, MALWARE, OR OTHER SECURITY INTRUSION, AND KINWELL DISCLAIMS ANY LIABILITY RELATING THERETO.

YOU UNDERSTAND AND AGREE THAT ANY CONTENT, MATERIAL AND/OR INFORMATION OBTAINED THROUGH THE USE OF THE SITE ARE USED AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR MOBILE PHONE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH CONTENT, MATERIAL AND/OR INFORMATION, OR YOUR RELIANCE ON ANY SUCH CONTENT, MATERIAL, AND/OR INFORMATION.

X. Limitation of Liability

YOU UNDERSTAND THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL KINWELL, ITS RELATED PERSONS, OR LICENSORS BE LIABLE TO YOU OR TO ANY PARTY FOR ANY CLAIMS, LIABILITIES, LOSSES, COSTS OR DAMAGES UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), CONTRACT, WARRANTY, STATUTE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR OTHER SPECIAL CATEGORY OF DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE OR DATA, SERVICE INTERRUPTION, COMPUTER OR MOBILE PHONE DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS, INCLUDING DEATH, ARISING OUT OF OR IN CONNECTION WITH ANY ACCESS, USE OF (OR INABILITY TO USE) THE SITE OR ANY SITE CONTENT, OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATED TO YOUR USE OF THE SITE. THIS IS TRUE EVEN IF KINWELL OR RELATED PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

IN NO EVENT SHALL KINWELL OR ITS RELATED PERSONS' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED IN THE AGGREGATE, THE GREATER OF $1,000.

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for damages such as in this section. Accordingly, some of these limitations may not apply to you in their entirety. If you are a resident of a U.S. state that permits the exclusion of these warranties and liabilities, then the limitations in this section specifically do apply to you.

XI. Indemnification

You agree to defend, indemnify, and hold Kinwell, its affiliates, its subsidiaries, and all of their directors, officers, employees, contractors, licensors, suppliers, representatives, proprietors, partners, shareholders, principals, agents, predecessors, successors, assigns, accountants, and attorneys harmless from and against any and all third-party suits, actions, claims, proceedings, damages, settlements, judgments, injuries, liabilities, obligations, losses, risks, costs, and expenses (including, without limitation, reasonable attorneys' fees, litigation expenses, and accounting fees), relating to or arising from, or alleged to arise from: (i) your use of the Site, or your use of the Site Content or other materials or features available on the Site, (ii) your User Content, (iii) your fraud, violation of law, negligence, or willful misconduct, or (iv) your breach of these Terms.

Kinwell reserves the right, at our expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in any case, you agree to cooperate with us if and as requested by us in the defense and settlement of such matter.

XII. Governing Law; Dispute Resolution; Arbitration; Venue; Severability

IMPORTANT NOTE: PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND KINWELL TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM KINWELL. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND KINWELL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION.

Governing Law. These Terms and your use of the Services shall be governed by the laws of the State of Delaware, without giving effect to the principles of conflict of laws. Subject to the requirement to arbitrate set forth in this Section, exclusive jurisdiction for all disputes that do not require arbitration will be the state and federal courts located in Delaware, and you consent to the jurisdiction of those courts.

Binding Arbitration Generally. Except as described below, you and Kinwell agree that every dispute arising in connection with these Terms, the Site, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, regulation, ordinance, fraud, misrepresentation, common law, constitutional provision, respondeat superior, agency or any other legal or equitable theory, regardless of whether a claim arises after the termination of these Terms, and regardless of whether a claim arises before or after the effective date of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.

Dispute Resolution. Certain portions of this section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Kinwell agree that we intend that this section satisfies the “writing” requirement of the Federal Arbitration Act.

1. First – Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Site or these Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Kinwell's actual or alleged intellectual property rights (an “Excluded Dispute”), which includes those actions set forth in subsection (C), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this subsection (A). Your notice to us must be sent to: support@kinwellaid.com. For a period of sixty (60) days from the date of receipt of notice from the other party, Kinwell and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Kinwell to resolve the Dispute or Excluded Dispute on terms with respect to which you and Kinwell, in each of our sole discretion, are not comfortable.
2. Binding Arbitration. If we cannot resolve a Dispute as set forth in subsection (A) (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND KINWELL (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT—INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER INTENTIONAL TORT OR NEGLIGENCE—COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDENT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT OR SERVICE PURCHASED THROUGH KINWELL WEBSITES OR ADVERTISING AVAILABLE ON OR THROUGH THE KINWELL WEBSITES. For U.S. residents, the Federal Arbitration Act (“FAA”), not state law, shall govern the arbitrability of all disputes between Kinwell and you regarding these Terms and the Site, including the “No Class Action Matters” subsection below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY. Kinwell and you agree, however, that the applicable state, federal or provincial law, as contemplated in the “Governing Law” subsection above, shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and Kinwell regarding these Terms and the Site, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to any jurisdiction's choice of law principles. Any Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”), except as modified herein, and the arbitration will be administered by the AAA. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the Commercial Arbitration Rules of the AAA. If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS' streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Kinwell consent to in writing. If an in-person arbitration hearing is required and you are a U.S. resident, then it will be conducted in Delaware. You and we will pay the administrative and arbitrator's fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Kinwell to pay a greater portion or all of such fees and costs in order for this section to be enforceable, then Kinwell will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party's individual claim. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide. The arbitrator will render an award within the time frame specified in the Commercial Arbitration Rules of the AAA. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the Commercial Arbitration Rules of the AAA, and these Terms. The arbitrator's award of damages and/or other relief must be consistent with the terms of the “Limitation of our Liability” section above as to the types and the amounts of damages or other relief for which a party may be held liable. If a claim is brought seeking public injunctive relief and a court determines that the restrictions prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such claim (and that determination becomes final after all appeals have been exhausted), the claim for public injunctive relief will be determined in court and any individual claims will be arbitrated. In such a case, the court shall stay the claim for public injunctive relief until the arbitration pertaining to individual relief has been entered in court. In no event will a claim for public injunctive relief be arbitrated. Attorneys' fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration. If the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), Kinwell will have the right to recover its attorneys' fees and expenses. This arbitration provision shall survive termination of these Terms or the Site. You can obtain AAA and JAMS procedures, rules, and fee information as follows: AAA: 800.778.7879 and http://www.adr.org and JAMS: 800.352.5267 and http://www.jamsadr.com.
3. Special Additional Procedures for Mass Arbitration. If twenty-five (25) or more similar claims are asserted against Kinwell by the same or coordinated counsel or are otherwise coordinated, you understand and agree that the resolution of your Dispute might be delayed. You also agree to the following coordinated bellwether process and application of the AAA Multiple Consumer Case Filing Fee Schedule. Counsel for the claimants and counsel for Kinwell shall each select five (5) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process; the parties may but are not required to agree in writing to modify the number of cases to be included in the bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings pursuant to this provision. In the bellwether process, a single arbitrator shall preside over each case. Only one (1) case may be assigned to each arbitrator during the bellwether process unless the parties agree otherwise. After decisions have been rendered in the first ten (10) cases, Kinwell and all claimants shall engage in a global mediation in an attempt to resolve the remaining cases with the benefit of the decisions in the bellwether cases. If the parties are unable to resolve the remaining cases after the mediation, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. After decisions have been rendered in the second group of twenty (20) cases, Kinwell and all claimants shall engage in a second global mediation in an attempt to resolve the remaining cases with the benefit of the decisions in the decided bellwether cases; if a global settlement cannot be reached in the second mediation, the parties also may discuss with the mediator the process for resolving the remaining cases with the benefit of the decisions in the first two (2) rounds of bellwether cases; the parties are not required to agree to any modifications to the process set forth herein. Absent a settlement or agreement to modify the procedure for arbitrating the remaining cases, in order to increase the efficiency of administration and resolution of arbitrations, the arbitration provider shall: (i) administer the arbitration demands in batches of fifty (50) demands per batch (to the extent there are fewer than fifty (50) arbitration demands left over after the batching described above, a final batch will consist of the remaining demands); (ii) designate one (1) arbitrator for each batch; and (iii) provide for a single filing fee due per side per batch. You agree to cooperate in good faith with Kinwell and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of single filing and administrative fees for batches of claims. This “batch arbitration” provision shall in no way be interpreted as authorizing class arbitration of any kind. Kinwell does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this subsection (C). The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this subsection (C) from the time of the first cases are selected for a bellwether process until the time your case is selected to proceed, withdrawn, or otherwise resolved. A court shall have authority to enforce this subsection (C) and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Kinwell.
4. Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SUBSECTION (A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES – OR IT WILL BE FOREVER BARRED.
5. Injunctive Relief. The foregoing provisions of this section will not apply to any legal action taken by Kinwell to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Kinwell Site and related services, and/or Kinwell's intellectual property rights (including such Kinwell claim that may be in dispute), Kinwell's operations, and/or Kinwell's products or services.
6. No Class Action Matters. YOU AND KINWELL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in subsection (B) to arbitrate will not apply and the Dispute must be brought exclusively in court in accordance with the section above. Notwithstanding any other provision of this section, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.

Small Claims Matters are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court of competent jurisdiction.

XIII. Note to International Users

The Site is controlled by Kinwell, which is located in the United States of America. We make no representation that the Site or Site Content are appropriate or available for use in locations outside of the United States. Accessing the Site from territories where such content, information, or other materials are illegal is prohibited. Those who choose to access the Site from locations outside of the United States do so on their own initiative and are responsible for compliance with local laws.

XIV. Severability

All parts of these Terms apply to the maximum extent permitted by law. Kinwell and you both agree that if we cannot enforce a part of this contract as written, then that part will be replaced with terms that most closely match the intent of the part we cannot enforce, to the extent permitted by law. The invalidity of part of these Terms will not affect the validity and enforceability of the remaining provisions. The section headings are for convenience only and do not have any force or effect.

XV. Changes to the Terms

The Site is continually under development, and Kinwell reserves the right to review or remove any part of these Terms in its sole discretion at any time and without prior notice to you. You should check the Terms from time to time when you use the Site to determine if any changes have been made. Any changes to these Terms are effective upon posting to the Site, unless applicable law requires us to provide additional notice or take other actions before such changes can become effective. If you disagree with these Terms, your sole and exclusive remedy is to discontinue your use of the Site. Your continued use after a change has been posted constitutes your acceptance of the changes.

XVI. Changes to the Site

By using the Site, you acknowledge and agree that: (1) all or any part of the Site may not be accessible at any time, for any period, or for any reason; and (2) Kinwell will not be liable if for any reason all or any part of the Site are unavailable at any time or for any period. Kinwell reserves the right at any time and for any reason to modify, or temporarily or permanently discontinue, the Site or any portion thereof, with or without notice. You agree that Kinwell shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site.

XVII. Miscellaneous

No waiver. No waiver by Kinwell of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure by Kinwell to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.

Remedies. You agree that any violation, or threatened violation, by you of these Terms constitutes an unlawful and unfair business practice that will cause us irreparable and unquantifiable harm. You also agree that monetary damages would be inadequate for such harm and consent to our obtaining any injunctive or equitable relief that we deem necessary or appropriate. These remedies are in addition to any other remedies we may have at law or in equity.

Assignment. You may not assign any of your rights under these Terms, and any such attempt will be null and void. Kinwell and its affiliates may, in their individual discretion, transfer, without further consent or notification, all contractual rights and obligations pursuant to these Terms if some or all of the business of Kinwell is transferred to another entity by way of merger, sale of its assets, or otherwise.

Notice for California Users. If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” This release includes the criminal acts of others.

Entire Agreement. This is the entire agreement between you and Kinwell relating to the subject matter herein and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter addressed in these Terms, excluding any other agreements that you may have entered into with Kinwell.

XVIII. Contact

If you have questions or comments about these Terms, please contact us at support@kinwellaid.com.