SCAN Health Plan Texas, Inc., Terms of Use

Effective Date: September 30, 2022

THESE TERMS INCLUDE DISCLAIMER OF WARRANTIES (Section 15), LIMITATION OF LIABILITY (Section 16), AND ARBITRATION OF DISPUTES (Section 19).

The information contained in the Websites is not meant to replace the advice of or treatment by health care professionals. Always contact a qualified health care professional for any medical symptoms or medical conditions. Never disregard professional health care advice or delay in seeking it because of something you have read on the Websites.

If this is an emergency, call 911 or go to the nearest hospital.

1. General; Your Agreement to these Terms
   

   Welcome to the websites, apps, social media pages, and other online or mobile locations and services owned and operated by or on behalf of SCAN Health Plan Texas, Inc., hereafter, “SHPTX” (the "Websites"). All references to "SHPTX," "we" or "our" in these Terms of Use include SCAN Health Plan Texas, Inc. and/or any other entities that may be affiliated with it, as appropriate based on context, unless otherwise stated. These Terms of Use apply to our interactions with you and all of our products and services.

   Please carefully read the following Terms of Use before using the Websites. By accessing, using and/or browsing the Websites, you acknowledge that you have read, understood and agree to be bound by these Terms of Use which form an agreement that is effective as if you had signed it. If at any time you do not agree to these Terms of Use, please do not access, use or browse the Websites or any of their content.

   THESE TERMS OF USE DESCRIBE CERTAIN RULES AND PROHIBITIONS THAT APPLY TO YOUR ACCESS TO, USE AND BROWSING OF THE WEBSITES, WHICH ARE SUBJECT TO THE ALL THE TERMS CONTAINED IN THESE TERMS OF USE. BY ACCESSING, USING AND/OR BROWSING ANY OF THE WEBSITES, YOU ARE AGREEING TO THESE TERMS OF USE, SHPTX'S PRIVACY POLICY AND ALL APPLICABLE LAWS AND REGULATIONS. IF YOU DO NOT AGREE WITH THESE TERMS OF USE, YOUR PERMISSION TO ACCESS, USE AND/OR BROWSE THE WEBSITES IS AUTOMATICALLY AND IMMEDIATELY REVOKED.

   Some Websites or areas of the Websites, such as specific sections offering features and functionality for caregivers, providers, agents or brokers, may be subject to additional terms and conditions that will be specified in those Websites or sections.

2. Updates and Changes
   SHPTX may make changes or updates to the Websites or these Terms of Use from time to time, without prior notice to you. Any changes or updates to these Terms of Use will be effective when posted on the Websites and apply to your access, use and browsing of the Websites on and after the Effective Date. Accordingly, you should check these Terms of Use regularly for changes and updates. You can determine when these Terms of Use were last revised by referring to the Effective Date at the top of this page. Each time you access, use or browse the Websites, you signify your acceptance of and continued agreement to the then-current Terms of Use.
3. Permitted Users
   

   The Websites are directed to persons 18 years of age or older and are not directed to persons under 18 years old. The Websites and SHPTX do not knowingly collect information from persons under age 18.

4. Use of Websites
   

   You acknowledge and agree that, as between SHPTX and you, all right, title and interest in and to the Websites and all materials on the Websites, including, without limitation, the text, graphics, logos, icons, images, information, material, content, design, layout, and organization (collectively, the "Material"), and any patents, copyrights, trademarks, trade secrets, inventions, know-how and all other intellectual property rights, are owned by, and the sole and exclusive property of, SHPTX or its licensors; and are valid and enforceable, and are protected by U.S. and international copyright and other laws. Any rights not expressly granted by these Terms of Use are reserved by SHPTX.

   You are authorized to view, print, and download Material solely for your personal, noncommercial use and solely for its intended purposes. You agree not to create derivative works of any Materials, and not to sell, lease, license, repurpose, modify, display, perform or otherwise use, including, without limitation, reproduce, duplicate, distribute, transmit, republish, copy, or exploit, the Material or derivative works thereof for any public or commercial purpose, unless specifically authorized in writing by SHPTX.

   You must keep all copyright and other intellectual property or proprietary notices, acknowledgements, credits, marks or logos contained on any Material printed or downloaded, and may not remove, obscure or modify such notices.

   You will not use the Websites in violation of any laws including, without limitation, those pertaining to the fraud and abuse or anti-kickback provisions of the federal Medicare and Medicaid laws.

5. Trademarks
   All trademarks, service marks, trade names, logos, domain names, URLs and icons appearing on the Websites, registered or not, are the property of SHPTX or their respective owners. You have no right or license to use any of the marks, service marks, trade names, logos, domain names, URLs and icons that appear on the Websites, other than in dealings with SHPTX, without the express written permission of SHPTX or the applicable owner. Unauthorized use may violate trademark and other laws. Any third-party names or trademarks referenced on the Websites do not constitute or imply affiliation, endorsement or recommendation by SHPTX, or of SHPTX by the third parties.
6. Links and Linking Policy
   The Websites may display or link to content that SHPTX does not own or control, which is provided solely as a convenience to you. These linked websites are operated by third parties and the links, content, products and/or services provided thereon are the sole responsibility of the entity that owns and operates them. You should review the privacy policy and any terms of use of each third-party website you visit. Your use of the linked websites is at your own risk. Unless specified otherwise, links to third party websites do not constitute or imply responsibility for or endorsement by SHPTX of those websites, the information they contain or any products or services they describe. SHPTX does not receive payment or other remuneration in exchange for your clicking on a link. SHPTX may revoke its permission for any link at any time.
7. Passwords and Accounts
   Certain sections and/or features of the Websites may require you to create an online account in order to access information or features of the Websites. To do so, you may be asked to confirm your consent to these Terms of Use and the Privacy Policy, and to enter your information such as first and last name, date of birth, SHPTX member ID and email address. In addition, you may be asked to create a password and username, and to answer security questions or provide other information to protect the security of your account ("Account Details"). Your Account Details are the property of SHPTX and will be used by SHPTX to administer your account.

   You are solely responsible for controlling your Account Details, for maintaining their confidentiality, and for authorizing, monitoring and controlling access to and use of your account, whether by you or others. You are prohibited from distributing, providing or otherwise making available your Account Details to any third party and are responsible for all activities that occur under your account. You agree to log out of your account at the end of each session, and to notify webmaster@scanhealthplan.com immediately of any unauthorized use of your account or of any need to deactivate your account. You authorize SHPTX to act on the instructions received through use of your Account Details, and acknowledge and agree that SHPTX  is not liable for any loss or damage arising from your failure to comply with this Section.

8. User Conduct
   

   The Websites may have facilities that allow you and others to post, share, email, transmit or otherwise make available submissions via a Website to communicate with SHPTX and other users. You understand that your submission of any text, photos, videos, graphics, survey responses, views or links (collectively, “User Submissions”) to the Websites may be or become available to others. You agree to post and send only materials and messages that are appropriate and related to the discussion or purpose of the Website and in compliance with these Terms of Use or other applicable terms. You, and not SHPTX, are responsible for compliance with all terms, policies, laws, regulations and ordinances in connection with your use of the Websites.

   You agree not to engage in any of the following activities in connection with your use of the Websites:

   (a) circumventing, modifying or interfering with; attempting to circumvent, modify or interfere with; or encouraging or assisting any other person in circumventing, modifying or interfering with any security measures, technology or software that is part of the Websites;

   (b) any activity that involves the use of software viruses, worms, spyware or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or otherwise permit the unauthorized use of or access to a computer or a computer network;

   (c) any automated use of the Websites;

   (d) damaging, disabling, disrupting, overburdening or impairing the Website or interfering with any other party’s use and enjoyment of the Websites;

   (e) taking any steps to interfere with, or in any manner compromise, any security measures employed by the Websites;

   (f) engaging in the practices of “screen scraping,” “database scraping” or any other activity with the purpose of obtaining information from the Websites; or

   (g) attempting to decompile, reverse engineer, disassemble, modify, hack or create derivative works from the Websites or defeat or overcome any encryption and/or digital rights management technology implemented with respect to the Websites.

   SHPTX reserves the right to investigate and take appropriate legal action against anyone who, in SHPTX’s sole discretion, violates this Section, including without limitation reporting a user to law enforcement authorities and terminating or suspending a user’s right to use the Websites.

9. User Submissions
   

   A Website user who submits any User Submission is solely responsible for that User Submission. Disclosure, use of or reliance on User Submissions by others is entirely at your own risk. SHPTX does not endorse or verify any User Submission, and is not liable in any way for any User Submission.

   SHPTX may but has no obligation to pre-screen User Submissions, and may refuse, edit, modify, delete and/or move any User Submission in its sole discretion. SHPTX is not liable in any way for such removal.

   By using the Websites, you may be exposed to User Submissions that are inaccurate or that you find offensive or objectionable. You agree that you will not rely on any User Submission and that you bear all risks from exposure to or use of any User Submission.

   By making any User Submission, you represent and warrant that (i) your User Submission is truthful and is your own original work; (ii) you own all right, title and interest in your User Submission, including copyrights; (iii) you and any other person mentioned or shown in your User Submission are 18 years old or older, and you, they, and your and their representatives, agents, heirs, executors and assigns, grant SHPTX the rights described hereunder, and release all claims concerning SHPTX’s or its designees’ use, modification or distribution of the User Submission; (iv) your User Submission does not violate any applicable laws or regulations, or the terms or rules of any platform, does not include any confidential or private information of any third party, and does not infringe or violate any other person's or entity's rights; (v) your User Submission does not contain any automated devices, bots, viruses, scripts, or any similar software, or any commercial or marketing material. You further represent and warrant that you have not been and will not be paid or compensated by anyone else for posting your User Submission, and no third-party agent, manager or anyone else is entitled to be paid or compensated as a result of your User Submission.

   By making any User Submission, you grant the SHPTX Parties (defined in Section 17 below) an irrevocable, assignable, sub-licensable, worldwide, royalty-free, fully paid-up, non-exclusive license, in their sole discretion, to use, distribute, reproduce, modify, combine, adapt, publish, translate, rent, lease, sell, publicly perform and publicly display your User Submission, along with your name or username or a fictitious name and place of residence, caption, text, tags, or any part thereof, in SHPTX’s discretion, and to use or incorporate the User Submission into other advertising, promotion, research, analysis or other materials in any format or medium now known or later developed. You hereby waive any right to inspect such use and any claims based on privacy, publicity, defamation, misappropriation, intellectual property or other claims for any use of User Submission.

10. Caregiver Access
    

    SHPTX allows you to authorize a designated adult caregiver to become an authorized user of your online account or to have a legal guardian (each, a "Caregiver"). To designate a Caregiver, you may be asked to provide certain information regarding such individual, such as the first and last name of the proposed Caregiver, and an email address for the proposed Caregiver. You represent that you have permission from the individual to share information about them with SHPTX for the purpose of designating them as a Caregiver. If you provide the requested information, the individual designated therein will receive an email from SHPTX notifying them of your designation as your Caregiver. SHPTX also may designate an individual as your Caregiver, if such individual is your legal guardian. To create an online account, the Caregiver may be asked to confirm his or her consent to these Terms of Use and Privacy Policy, and to provide certain information, which may include the Account Details and other information specified in Section 9 above. Once the Caregiver successfully creates an online account or gains access to your existing online account, such Caregiver will have the ability to view your member information and other information as it appears on your online account, and to manage certain aspects of your online account. SHPTX reserves the right to qualify, remove or add credentials for Caregivers at any time.

11. Termination
    SHPTX may, at its sole discretion, immediately and without notice, suspend or terminate your use or any user's use of the Websites or any portion thereof, including, without limitation, your online account, or block your or any user's access to information available via the Websites, at any time for any reason. You agree that SHPTX shall not be liable to you or any third party for any such suspension or termination.
12. Accuracy of Information
    Although SHPTX periodically validates and maintains the Websites, SHPTX makes no guarantees as to their correctness, completeness, or accuracy. The Websites may contain typographical errors, inaccuracies, or other errors or omissions. Unauthorized additions, deletions, or alterations could be made to the Websites by third parties without our knowledge. If you believe that information found on the Websites is inaccurate or unauthorized, please inform us by contacting webmaster@scanhealthplan.com.
13. Privacy and Security
    The privacy and security of your protected health information is very important to us. For more information, please review SHPTX  's Notice of Privacy Practices to understand SHPTX 's practices regarding the privacy and security of your protected health information.
    
    SHPTX  also recognizes the importance of protecting information about you that is collected or acquired through the Websites. For more information, please review SHPTX 's Privacy Policy, to understand our practices regarding the treatment of information about you that is collected or acquired through the Websites. If you do not agree with the Privacy Policy, you are not authorized to use the Websites. The terms of the Privacy Policy are incorporated herein by this reference.

14. Permission for Communications with You

    You give SHPTX permission to transmit email, texts, push notifications or postal mail to you or to telephone you. Unsubscribe instructions are included in each promotional email or text.

    - If you receive an email from SHPTX and want to unsubscribe, please let us know by following the applicable instructions that are included in the email you received. Please note that unsubscribe requests for promotional e-mails may take up to ten (10) business days to become effective.

    - If you provide a phone number to SHPTX, you agree that you are the authorized user of that number and that you may receive text messages and telephone calls from SHPTX and its associates, including but not limited to artificial or pre-recorded messages, or via an automatic telephone dialing system, even if your phone number is on a Do Not Call Registry. Calls to SHPTX may be recorded and monitored. You are not required to receive text messages or calls from SHPTX as a condition (directly or indirectly) of user of SHPTX services or to use the SHPTX websites.

    You may not decline to receive or unsubscribe from communications regarding your transactions, dealings with SHPTX or the Websites, or technical information about the Websites.

15. DISCLAIMER OF WARRANTIES

    THE WEBSITES (INCLUDING, WITHOUT LIMITATION, ANY MATERIAL, AND ALL RELATED PRODUCTS AND SERVICES) ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SHPTX AND ITS SUPPLIERS, VENDORS, LICENSORS, AND RELATED PARTIES DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, FREEDOM FROM COMPUTER VIRUS, FREEDOM FROM ERRORS, UNINTERRUPTED AVAILABILITY, NON-INFRINGEMENT, OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. Without limiting the foregoing, you are responsible for taking all necessary precautions to ensure that any Material or access to the Websites is free of viruses or other harmful code. The Websites and Material are provided for informational purposes only, for your review and evaluation.

    Please note that once you leave the Websites, either by using a link SHPTX may provide or by specifying your own destination, SHPTX accepts no responsibility for the content, products and/or services provided at any third-party locations or websites. SHPTX does not control, endorse, promote or have any affiliation with any other website unless expressly stated on the Websites. You acknowledge and agree that SHPTX shall not be responsible or liable, directly or indirectly, for any damage, loss or other claim caused or alleged to be caused by or in connection with access to, use of or reliance on any content, material or information available on or through any other website or resource.

    Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.

16. Limitation of Liability

    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SHPTX OR ITS SUPPLIERS, VENDORS, LICENSORS OR RELATED PARTIES, INCLUDING, WITHOUT LIMITATION, THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE "SHPTX PARTIES"), BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER, RESULTING FROM ANY LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, BUSINESS INTERRUPTION, LITIGATION, OR ANY OTHER PECUNIARY LOSS, WHETHER BASED ON PERSONAL INJURY, BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR ANY OTHER THEORY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE WEBSITES, THE USE OR PERFORMANCE OF THE WEBSITES, ANY DELAY OR INABILITY TO USE THE WEBSITES, OR THE PROVISION OF OR FAILURE TO MAKE AVAILABLE ANY INFORMATION, SERVICES, PRODUCTS, MATERIAL, OR OTHER RESOURCES CONTAINED ON OR ACCESSIBLE THROUGH THE WEBSITES (EACH OF THE FOREGOING INCLUDING, WITHOUT LIMITATION, ANY MATERIALS AND ALL WEBSITE RELATED PRODUCTS AND SERVICES), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESHPTX PARTIES DISCLAIM ALL SUCH LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OR THE EXISTENCE OF ANY LIMITED REMEDY. THE LIMITATIONS SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THESE TERMS OF USE AND THE WEBSITE WOULD NOT BE PROVIDED TO YOU ABSENT SUCH LIMITATIONS.

    The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if SHPTX were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of our services).

    Exclusions and Limitations: Because some jurisdictions do not allow limitations on how long an implied warranty lasts, or the exclusion or limitation of liability for consequential or incidental damages, the above limitations may not apply to you. The Disclaimer and Limitation of Liability shall be to the maximum extent permitted by applicable law.

17. Copyright Infringement Claims

    SHPTX respects the intellectual property of others. If you believe that your work has been copied on the Websites in a way that constitutes copyright infringement or your intellectual property rights have otherwise been violated, please provide the following information:

    1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;

    2. a description of the copyrighted work or other intellectual property that you claim has been infringed;

    3. a description of where the material that you claim is infringing is located on the Websites (providing URL(s) in the body of an email is the best way to help SHPTX locate content quickly);

    4. your name, address, telephone number, and email address;

    5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

    6. a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or other intellectual property owner or authorized to act on the copyright owner's behalf.

    Such information should be sent to the following email address: webmaster@scanhealthplan.com.

18. Modifications to this Website

    SHPTX reserves the right at any time and from time to time to modify, suspend, or discontinue, temporarily or permanently, the Websites, or any portion thereof, with or without notice. You agree that SHPTX will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Websites.

19. Governing Law and Disputes; Class Action Waiver; Arbitration

    If you reside in the U.S. (and as applicable to U.S. residents), certain portions of this section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act.  You and SHPTX agree that we intend that this section satisfies the “writing” requirement of the Federal Arbitration Act.

    You agree that any dispute between you and SHPTX arising out of or relating to these Terms of Use, the Privacy Policy, the Websites or any Material will be decided only by arbitration, individually and not on a class-wide basis, which shall be governed by the Federal Arbitration Act. Any arbitration will be administered by the American Arbitration Association and will take place in Harris County, Texas, U.S.A.

    The Websites are controlled within the United States of America and directed to individuals residing in the United States. Those who choose to access the Websites from locations outside of the United States do so on their own initiative and are responsible for compliance with local laws if and to the extent local laws are applicable. SHPTX does not represent that the Websites or Material are appropriate outside the United States of America. SHPTX reserves the right to limit the availability of the Websites to any person, geographic area or jurisdiction at any time in its sole discretion.

    You agree that resolution of disputes pursuant to this section shall proceed as follows:

    A.            First – Try to Resolve Disputes and Excluded Disputes.  If any controversy, allegation, or claim arises out of or relates to our service or these Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of SHPTX’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Subsection (D), 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: privacyoffice@scanhealthplan.com.  For a period of sixty (60) days from the date of receipt of notice from the other party, SHPTX 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 SHPTX to resolve the Dispute or Excluded Dispute on terms with respect to which you and WH, in each of our sole discretion, are not comfortable.

    B.            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 SHPTX (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT— INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER INTENTIONAL TORT OR NEGLIGENCE,—COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT 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 OUR SERVICE OR ADVERTISING AVAILABLE ON OR THROUGH OUR SERVICE.  For U.S. residents, the Federal Arbitration Act (“FAA”), not state law, shall govern the arbitrability of all disputes between SHPTX and you regarding these Terms and our service, including the “No Class Action Matters” Section 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.  SHPTX and you agree, however, that the applicable state, federal or provincial law shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and SHPTX regarding these Terms and our services, 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.  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 SHPTX 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 Harris County, Texas.  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 SHPTX to pay a greater portion or all of such fees and costs in order for this section to be enforceable, then SHPTX 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.  This arbitration provision shall survive termination of these Terms or our service.  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.

    C.            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. 

    D.            Injunctive Relief.  The foregoing provisions of this section will not apply to any legal action taken by SHPTX 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 our services and/or SHPTX’s intellectual property rights (including such SHPTX may claim that may be in dispute), SHPTX’s operations, and/or SHPTX’s products or services. 

    E.            No Class Action Matters.  YOU AND SHPTX 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 pursuant to Subsection (F).  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.

    F.            Jurisdictional Issues.  Except where arbitration is required above or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or Federal court Harris County, Texas.  Accordingly, you and SHPTX consent to the exclusive personal jurisdiction and venue of such courts for such matters.

    G.           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. 

20. Force Majeure

    SHPTX shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control or unforeseen circumstances such as acts of nature or God, fire, flood, earthquake, accidents, strikes, war, terrorism, governmental act, failure of or interruption in common carriers (including, without limitation, Internet service providers and web hosting providers) or utilities, or shortages of transportation facilities, fuel, energy, labor or materials.

21. Miscellaneous

    These Terms of Use and Privacy Policy set forth the entire understanding and agreement between you and SHPTX with respect to the subject matter hereof. If any provision of these Terms of Use or Privacy Policy is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms of Use or Privacy Policy shall remain in full force and effect. Headings are for reference only and in no way define, limit, construe or describe the scope or extent of such section. SHPTX's failure to act with respect to any failure by you or others to comply with these Terms of Use or Privacy Policy does not waive its right to act with respect to subsequent or similar failures. You may not assign or transfer these Terms of Use or Privacy Policy or your rights or obligations under these Terms of Use or Privacy Policy without the prior written consent of SHPTX, and any assignment or transfer in violation of this provision shall be null and void. There are no third-party beneficiaries to these Terms of Use or Privacy Policy.

22. Questions?

    Please direct any questions you may have about these Terms of Use, technical questions or problems with the Websites, or comments or suggestions to SHPTX at webmaster@scanhealthplan.com.