Terms of Service
These terms of service (the “Terms“) are a legal contract between Arbor Environmental, LLC dba RespSafety (“RespSafety”, “we” or “us”) and the person or entity executing this Agreement (“you” or “your”). The terms explain how you are permitted to use the respirator medical evaluation services provided by and through our cloud-based software platform and our website located at the URL https://respsafety.com (collectively, the “Site”). These Terms also govern your use of all the software, video, text, data, information, graphics, proprietary content and more (all of which we refer to as “Materials”) that we and/or our affiliates may make available to you, as well as any services we may provide through this Site). Collectively, the Site, the Materials, and the services provided herein are referred to as the “Service”.
BY CLICKING THE “I AGREE” BOX OR OTHERWISE ACCEPTING THE TERMS AND PROCEEDING OR BY USING THE SERVICE, YOU ARE AGREEING TO ALL THE TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCEPT THE TERMS OR ACCESS OR OTHERWISE USE THE SERVICE.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER, THAT AFFECTS YOUR RIGHTS.
1. The Service
We offer access and use of our cloud-based technology and solution for online respirator medical evaluations for instant OSHA compliant respirator clearance for individuals and businesses.
We are a Service that facilitates online clearance of respirators for individuals and companies. We offer a convenient online respirator medical evaluation solution to, among others, help employers protect their employees and meet OSHA requirements for fit testing in a cost-efficient way. We are not a medical service provider, health care provider, virtual clinic, pharmacy, or health insurance company. Nor are we a governmental or regulatory agency or group.
While the Service conducts an evaluation using the mandatory medical questionnaire found in Appendix C of the OSHA Respirator Medical Evaluation Questionnaire, and may also provide access to certain general medical information, the Service itself cannot and is not intended to provide medical diagnosis, guidance or advice. Please contact your physician or other qualified health care provider with any questions regarding personal health, medical conditions, or related to your fitness to wear a respirator. Never disregard, avoid, or delay in obtaining medical advice from a doctor or other qualified health care provider because of something posted on the Site or information obtained through use of the Service. If you have or suspect that you have a medical problem or condition or are not certain you should wear a respirator (even if you are cleared by the Service), please contact a qualified health care professional immediately and before you begin wearing a respirator. THE CONTENT ON THE SITE AND THE SERIVCE ARE NOT AND SHOULD NOT BE CONSIDERED MEDICAL ADVICE OR A SUBSTITUTE FOR OBTAINING MEDICAL ADVICE FROM A HEALTH CARE PROFESSIONAL. YOU SHOULD ALWAYS TALK TO YOUR Health Care Provider(s) FOR MEDICAL QUESTIONS, INCLUDING INFORMATION REGARDING YOUR HEALTH AND HEALTH CONDITIONS AND FITNESS TO WEAR A RESPIRATOR.
RespSafety can change, update, or add or remove provisions of these Terms at any time by posting the updated Terms on the Site. We will ask for your express consent to the updated Terms. If you do not agree with any of the updated Terms, you must stop using the Service. If you stop using the Service and have prepaid for unused tests, you may contact RespSafety to discuss your objections to the updated Terms and how to obtain a refund. In lieu of a refund, RespSafety may instead agree that the Terms you originally agreed to will continue to apply to your use of the Service for those prepaid tests and that you have no further right to use the Service once those prepaid tests are exhausted.
RespSafety may make changes to the Service at any time, without notice. If you object to any changes to the Service, your sole recourse will be to cease using it. We also reserve the right to discontinue the Service at any time without notice. We will not be liable to you or any third-party should we exercise our right to modify or discontinue the Service.
4. Users of the Service
(a) Employees and Individuals. If you are an individual or employee, you accept responsibility for yourself in your use of the Service. The Service is designed for you to answer mandatory OSHA questions about your health to evaluate your fitness to wear a respirator. However, you acknowledge that the Service depends on your truthful, correct, and complete answers, and must be done on a periodic basis since your health and condition will evolve over time and thus your answers may change. Use of the Service is at your own risk. You assume full responsibility for all outcomes, to the extent permitted by law. By using the Service, you agree to not hold RespSafety liable in any way for clearing you to wear a respirator or directing you to visit with your health care professional for a medical examination about your ability to wear a respirator, based on your answers and health, or changes that may occur over time.
The Service may direct you to have your health care professional review your answers and provide guidance about your fitness to wear a respirator. It is YOUR responsibility to CONTACT AND MEET WITH YOUR HEALTH CARE PROFESSIONAL ABOUT YOUR POTENTIAL USE OF A RESPIRATOR BEFORE WEARING ONE.
Additionally, you agree and understand that:
- The entry of certain medical and person information into the Service in response to the mandatory OSHA questions about you and your health is required to use the Service, and understand that measures have been taken that are designed to safeguard your information, but no computer system is totally secure.
- We will store the results of the evaluation about your fitness for wearing a respirator for the time required by OSHA (which is currently the duration of your employment plus 30 years), unless your employer takes over this responsibility. This bullet point does not apply to individuals who are not undertaking a respirator fitness evaluation on their own.
- You acknowledge that you receive the health care services only from your health care providers and that RespSafety is not a health care provider.
- You acknowledge that the Service does not guarantee that you are fit to wear a respirator or promise that you will be cleared to wear one.
(b) Employers. If you are an employer, you accept responsibility for your employees as well as yourself in the use of this Service. You are also responsible for the information you provide during your use of the Service and for complying with all applicable laws in connection with your use of the Service. RespSafety has established safeguards and procedures designed to protect the security of information about an individual’s ability to wear a respirator, but you must also take steps to protect the privacy and confidentiality of information shared by your workers. You must not direct, look at, or review the workers’ information input into the Service. We make no representations regarding your ability to bill third-party payors for use of the Service. You are responsible for complying with all applicable billing requirements for tests you purchase for your workforce.
By using the Service, you represent, acknowledge and agree that you are of age under the laws of your jurisdiction (usually 18+ years) and/or lawfully able to enter into contracts. If you are not of age (a “Minor”), you represent that you are using the Service with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Service and agree to its Terms. If you are a parent or legal guardian of a Minor, you hereby consent to the use of the Service by a Minor, agree to bind the Minor to these Terms and to fully indemnify and hold harmless RespSafety if the Minor breaches any of these Terms. If you are not legally able to enter into contracts, you may not use the Service at any time or in any manner or submit any information to RespSafety through the Service. To be able to use and access the Service through an employer, however, employers contract separately with RespSafety and then invite their workers to join the Service.
6. Use of the Service.
The Service is a service for the evaluation of a person’s ability to wear a respirator. The Service is licensed, not sold, to you.
(a) Grant of a Limited License to Use the Service. The Service is protected by copyright laws throughout the world. Subject to your agreement, and continuing compliance with these Terms, and any other relevant RespSafety policies, RespSafety grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable limited license, subject to the limitations below, to use the Service solely for your own personal, non-commercial use only. You agree not to use the Service for any other purpose.
(b) Restrictions. You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Service; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Service except as expressly permitted by RespSafety; (iii) decompile, reverse engineer or disassemble the Service except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Service except as expressly permitted by RespSafety; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Service or unduly burdening or hindering the operation and/or functionality of any aspect of the Service; (vi) attempt to gain unauthorized access to or impair any aspect of the Service or its related systems or networks; or (vii) resell the Service except as expressly permitted by RespSafety in a separate written contract between you and RespSafety.
(c) Account Registration. You need not register with RespSafety when you are visiting or viewing the public areas of the Site, or to browse any publicly accessible information in the Site. However, in order to access and use the features of the Service, you must register with RespSafety for an account and receive a password. For purposes of the Terms, a “Registered User” is a user of the Service (“User,” or “user”) who has registered an account with us (“Account”). RespSafety may delete your account due to inactivity. If your Account is deleted and you later need it restored, please contact us.
(d) Registration Data. In registering for the Service, you agree to (i) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are not a person barred from using the Service under the laws of any applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (A) notify RespSafety immediately of any unauthorized use of your password or any other breach of security; and (B) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current, or incomplete, or RespSafety has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, RespSafety has the right to suspend or terminate your Account and refuse any and all current or future use of the Service (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself or the Minor you represent, or
register for an account on behalf of any group or entity unless you are authorized to bind such person, group or entity to these Terms. By registering another person, group or entity you hereby represent that you are authorized to do so. You agree that you shall not have more than one Account per platform at any given time. RespSafety reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Service if RespSafety has previously removed you, or if you have been previously banned from use of the Service, nor to designate other individuals to use an account on your behalf.
(e) Data Network and Internet Access. When you access the Service through a mobile network, your network or roaming provider’s messaging, data and other rates and fees will apply. Using certain services may be prohibited or restricted by your network provider and not all features of the Service may work with your network provider or device. The Service requires an Internet connection to access internet-based features, authenticate the Service, and perform other functions. You acknowledge that you may be charged by your network service provider, and shall be responsible for any such charges, for internet access.
The Service allows you to purchase access codes for evaluation tests. Requests for a refund must be received by RespSafety within 24 hours of purchase of the access codes at issue. Requests received within the first 24 hours will be honored. No refunds will be made after 24 hours. If you cancel your account at any time, you will not receive any refund. After 24 hours, all sales are final.
You agree to pay all fees or charges that may apply to your Account based on any fees, charges, and billing terms between you and RespSafety and any fees or charges that may be applicable for use of the Service as contracted separately with you or as shown on the Site. You agree and consent to RespSafety’s use of third-party payment providers for billing and online payments. If you do not pay on time or if RespSafety cannot charge your payment method for any reason or payment is rejected or refunded, RespSafety reserves the right to either suspend or terminate your access to the Service and Account and terminate these Terms. You are expressly agreeing that RespSafety is permitted to bill you for any applicable fees, any applicable tax and any other charges you may incur in connection with your use of the Service and the fees will be billed to the payment method designated on your registration with the Service.
9. Rules of Conduct.
In addition to your other promises and obligations, by using RespSafety’s Service, you agree not to do any of the following:
- Use your account or the Service to advertise, or solicit, or transmit any commercial advertisements, including chain letters, junk email or repetitive messages (spim and spam) to anyone;
- Use your account or Service to engage in, discuss or incite any illegal conduct or activity;
- Access another user’s account without permission;
- Use the Service in any manner that violates any applicable laws or regulations or is prohibited by these Terms;
- Collect or harvest any information about other users;
- Post, request, or link to obscene, threatening, embarrassing, hateful, racially or ethnically insulting, inciteful, deceptive, tortuous, defamatory, libelous, harassing, stalking or otherwise inappropriate or offensive material or conduct or that otherwise violate the legal rights (such as rights of privacy and publicity) of others;
- Discuss, promote, or depict any form of child sexuality, abuse, exploitation, or related topics that may be harmful to or threaten the security of a child or minor;
- Use features of the Service for anything other than their intended purpose;
- Interfere with or disable any security-related features of the Service, or any part thereof, including any services available on or through any Third Party Sites;
- Decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any code or underlying ideas or algorithms of any part of the Service;
- Use any robot, spider, scraper or other automated means to access the Service;
- Take any action that imposes an unreasonable or disproportionately large load on our infrastructure;
- Post anything contrary to our public image, goodwill or reputation; or
- Engage in any other prohibited or illegal conduct.
This list of prohibitions provides examples and is not complete or exclusive. RespSafety reserves the right to terminate access to your Account, your ability to use the Service, with or without cause and with or without notice, for any reason or no reason, or for any action that RespSafety determines is inappropriate or disruptive to this Service or to any other user of this Service or may result in harm, liability, loss or damages to RespSafety, its software, technology, hardware, equipment, network, data or that of others. RESPSAFETY MAY REPORT TO LAW ENFORCEMENT AUTHORITIES ANY ACTIONS THAT MAY BE ILLEGAL, AND ANY REPORTS IT RECEIVES OF SUCH CONDUCT. WHEN LEGALLY REQUIRED OR AT RESPSAFETY’S DISCRETION, RESPSAFETY WILL COOPERATE WITH LAW ENFORCEMENT AGENCIES IN ANY INVESTIGATION OF ALLEGED ILLEGAL ACTIVITY THROUGH THE USE OF THIS SERVICE.
If you send or transmit any communications, comments, questions, suggestions, or related materials to RespSafety, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Service, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and RespSafety is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that RespSafety is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
11. Intellectual Property Rights
(b) License. If you elect to display, post, submit, or otherwise make available to RespSafety, on or through Services, any content or works of authorship, including, without limitation, images, audio files, text, software, or other materials (collectively, “Content”), you hereby grant us a perpetual, irrevocable, royalty-free, assignable, worldwide, non-exclusive right and license, including the right to grant sublicenses to third parties, to use, reproduce, publicly display, publicly perform, prepare derivative works from, and distribute the Content for any purpose.
(b) Ownership. The Service and all proprietary and intellectual property rights therein are and shall remain RespSafety’s property or the property of RespSafety’s licensors. Neither these Terms nor your use of the Service convey or grant to you any rights: (i) in or related to the Service except for the limited license granted above; or (ii) to use or reference in any manner RespSafety’s company names, logos, product and service names, trademarks or services marks or those of RespSafety’s licensors. There are no licenses by implication. If you breach any of these Terms, the above license will terminate automatically and you must stop using the Service and immediately destroy any materials downloaded or printed from the Service.
12. Term and Termination
The Terms commence on the date when you start using the Service and remain in full force and effect while you use the Service, unless terminated earlier in accordance with the Terms. If you want to terminate the Service, you may do so by (a) notifying RespSafety at any time; and/or (b) closing your Account. We reserve the right to terminate or suspend your account or access to the Service at any time and for any reason. It is within our sole discretion and determination to terminate your Account for what we deem to be a violation or breach of these Terms. In the event that we terminate or suspend your Account, you will have no further access to your Account or anything associated with it. Termination of the Service includes (i) automatic termination of all licenses and you must immediately destroy any downloaded or printed materials (including videos); and (ii) deletion of your password and related information, files and content associated with or inside your Account (or any part thereof), except to the extent of any surviving licenses or applicable record retention requirements. RespSafety will not have any liability whatsoever to you for any suspension or termination. All provisions of the Terms, which by their nature should survive, shall survive termination of the Service, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
You may close your Account by using the feature provided in the Service or, in the alternative, by emailing us at firstname.lastname@example.org. We will proceed to close your Account and send you an email confirmation.
13. Links to Third-Party Sites.
14. Disclaimer of Warranties.
(a) Generally. You use the Service at your own risk. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, AND TO THE FULLEST EXTENT PERMITTED BY LAW, RESPSAFETY (ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ASSOCIATES, PARTNERS, LICENSORS AND SUPPLIERS) DISCLAIM AND EXCLUDE ALL WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SATISFACTORY QUALITY, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. RESPSAFETY DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
(b) Disclaimer of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE RESPSAFETY SERVICE, INCLUDING EMPLOYERS. YOU UNDERSTAND THAT RESPSAFETY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE INFORMATION PROVIDED BY, OR THE STATEMENTS OF, USERS OF THE SERVICE.
(c) Special Disclaimer regarding the Service. RespSafety is not a health care provider. The Service is a tool, and any information contained on the Site is not to be construed as medical recommendation, or as professional advice. Always seek the advice of your doctor or other qualified healthcare provider. Never disregard medical advice or delay seeking it because of something you have read on the Site.
15. Limitation of Liability.
NOTHING IN THESE TERMS SHALL AFFECT YOUR LEGAL RIGHTS AS A CONSUMER OR EXCLUDE OR LIMIT ANY LIABILITY, WHICH CANNOT BE LEGALLY EXCLUDED, OR LIMITED.
RESPSAFETY SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, REMOTE, OR OTHER SIMILAR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES (HOWEVER SUCH LOSSES ARE QUALIFIED), ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OR THE SERVICE ITSELF, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT RESPSAFETY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SUBJECT TO THE EXCLUSIONS EXPRESSLY SET FORTH IN THIS SECTION, IN ALL EVENTS, RESPSAFETY SHALL NOT BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID TO RESPSAFETY IN ACCORDANCE WITH THESE TERMS IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT A CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID ANYTHING TO RESPSAFETY DURING SUCH TIME PERIOD, YOUR SOLE REMEDY (AND RESPSAFETY’S EXCLUSIVE LIABILITY) FOR ANY DISPUTE WITH RESPSAFETY IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN RESPSAFETY AND YOU. To the extent that RespSafety may not, as a matter of applicable law, disclaim any warranty or limit its liability as set forth in these Terms, the scope of such warranty, and the extent of RespSafety’s liability, shall be the minimum permitted under such applicable law.
You agree to indemnify and hold RespSafety, its parents, subsidiaries, affiliates, officers, employees, agents, partners, licensors and successors (collectively, the “RespSafety Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your use of, or inability to use, the Service; (b) your violation of the Terms; (c) your violation of any rights of another party, including any Users; or (d) your violation of any applicable laws, rules or regulations. RespSafety 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 will fully cooperate with RespSafety in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Service.
17. Local Laws.
RespSafety controls and operates the Service from its headquarters in the United States of America and it may not be appropriate or available for use in other locations. If you use the Service outside the United States of America, you are responsible for following applicable local laws.
18. Dispute Resolution and Arbitration; Class Action Waiver; Limitation on Time to File Claims.
Please read this carefully. It affects your rights.
(a) Disputes and Applicable Law. These Terms will be subject to and construed in accordance with the laws of the State of California, United States of America excluding its rules regarding conflicts of law. You agree that any claim or dispute you may have against RespSafety must be resolved exclusively by a state or federal court located in the State of California, except as otherwise agreed by the parties or as described in the Arbitration subsection below. You agree to submit to the personal jurisdiction of the courts located in Los Angeles County, California for the purpose of litigating all such claims or disputes.
(b) Scope. This agreement to arbitrate (“Arbitration Agreement”) applies to any and all disputes, claims, or controversies between you and RespSafety arising out of or relating to the Service, including your purchase of any RespSafety products, services, any communications, advertising or marketing by or regarding RespSafety, use of the Site (including your reliance on any resources, articles or information made available on the Site), any products or services made available, offered, sold or distributed by RespSafety, any aspect of your relationship or transactions with RespSafety, and all other aspects of your relationship with RespSafety, past, present or future, whether arising under foreign, federal, state or local statutory and/or common law, or whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), deceptive or fraudulent trade practices, deceptive or fraudulent business practices, or any other legal or equitable theory, and includes the validity, enforceability, or scope of this Arbitration Agreement (with the exception of the enforceability of the Class Action Waiver clause below) (collectively, the “Disputes”).
(b) Exclusion from Arbitration. Notwithstanding the terms of this Arbitration Agreement, you may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute is initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS ARBITRATION AGREEMENT (the “Opt-Out Deadline”). You may opt out by mailing written notification to Arbor Environmental, LLC dba RespSafety, 955 Deep Valley Drive, #3534, Palos Verdes Peninsula, CA 90274. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes through arbitration. Your decision to opt-out will have no adverse effect on your relationship with RespSafety. You are responsible for ensuring RespSafety’s receipt of your opt-out notice, and you therefore may wish to send a notice by means that provide a written receipt. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
(c) Reservation of Right to Reject. RespSafety reserves the right to reject your request for arbitration for any Dispute which can be resolved in small claims courts.
(d) Pre-Arbitration Dispute Resolution. For all Disputes, you must first give RespSafety an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Arbor Environmental, LLC dba RespSafety, 955 Deep Valley Drive, #3534, Palos Verdes Peninsula, CA 90274. That written notification must include (1) your name, (2) your address, (3) a written description of the Dispute, and (4) a description of the specific relief you seek. If RespSafety does not resolve the Dispute to your satisfaction within 45 days after it receives your written notification, you may pursue your Dispute in arbitration.
(e) Federal Arbitration Act. The parties each mutually agree to resolve all Disputes between them exclusively through final and binding arbitration instead of filing a lawsuit in court. This arbitration provision is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) and will apply to all Disputes. The parties each also expressly agree that this Arbitration Agreement will be governed by the FAA even if you and/or RespSafety and/or this Arbitration Agreement is otherwise exempted from the FAA. Any disputes in this regard shall be resolved exclusively by an arbitrator. If, but only if, the arbitrator determines the FAA does not apply, the laws of the State of California law governing arbitration agreements will apply.
(f) Class Action Waiver. The parties each mutually agree that by entering into this Arbitration Agreement, both waive their right to have any Dispute brought, heard or arbitrated as, or to participate in, a class action, collective action and/or representative action, and an arbitrator shall not have any authority to consolidate more than one person’s claims, and may not otherwise hear or arbitrate any class, collective or representative action (“Class Action Waiver”). In any case in which (1) the Dispute is filed as a class, collective or representative action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class, collective and/or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. Notwithstanding any other clause contained in this Arbitration Agreement, any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. All other disputes with respect to whether this mutual arbitration provision is unenforceable, unconscionable, applicable, valid, void or voidable shall be determined exclusively by an arbitrator, and not by any court.
(g) Arbitration Procedures. Any Dispute shall be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its then current Consumer Arbitration Rules in effect at the time the arbitration is initiated. If you bring a claim subject to arbitration, you will pay toward the fees and deposits imposed by the AAA or other arbitrator only an amount equal to the amount you would have had to pay as filing fees and initial court costs if you had filed suit in a court of competent jurisdiction.
(h) Location of Arbitration. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. The arbitrator or arbitration panel, as the case may be, will apply and be bound by this section and any additional 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. All issues are for the arbitrator to decide, including arbitrability.
(i) Awards. Except as provided in the Class Action Waiver, the arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The arbitrator shall apply the state or federal substantive law, or both, as is applicable.
(j) Bellwether Proceeding. IF TEN OR MORE PERSONS OR ENTITIES (COLLECTIVELY, “CUSTOMERS”) INITIATE NOTICES OF DISPUTE RAISING SIMILAR CLAIMS, AND COUNSEL FOR THE CUSTOMERS BRINGING THE CLAIMS ARE THE SAME OR COORDINATED FOR THESE CUSTOMERS, THE CLAIMS SHALL PROCEED IN ARBITRATION IN A COORDINATED PROCEEDING. COUNSEL FOR CUSTOMERS AND COUNSEL FOR RespSafety SHALL EACH SELECT FIVE CASES TO PROCEED FIRST IN ARBITRATION IN A BELLWETHER PROCEEDING. THE REMAINING CASES SHALL NOT BE FILED IN ARBITRATION UNTIL THE FIRST TEN HAVE BEEN RESOLVED. IF THE PARTIES ARE UNABLE TO RESOLVE THE REMAINING CASES AFTER THE CONCLUSION OF THE BELLWETHER PROCEEDING, EACH SIDE MAY SELECT ANOTHER FIVE CASES TO PROCEED TO ARBITRATION FOR A SECOND BELLWETHER PROCEEDING. THIS PROCESS MAY CONTINUE UNTIL THE PARTIES ARE ABLE TO RESOLVE ALL OF THE CLAIMS, EITHER THROUGH SETTLEMENT OR ARBITRATION. A COURT WILL HAVE AUTHORITY TO ENFORCE THIS CLAUSE AND, IF NECESSARY, TO ENJOIN THE MASS FILING OF ARBITRATION DEMANDS AGAINST RespSafety.
(k) Limitation on Time to File Claims. UNLESS OTHERWISE PROHIBITED BY APPLICABLE LAWS OR REGULATIONS, ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
19. Electronic Communications.
The communications between you and RespSafety use electronic means, whether you visit the RespSafety Site or send RespSafety e-mails, or use the Service or whether RespSafety posts notices on the Site or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from RespSafety in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that RespSafety 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. Where RespSafety requires that you provide an e-mail address; you are responsible for providing RespSafety with your most current e-mail address. In the event that the last e-mail address you provided to RespSafety is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, RespSafety’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.
20. Consumer Notice.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The Service is provided byArbor Environmental, LLC dba RespSafety, 955 Deep Valley Drive, #3534, Palos Verdes Peninsula, CA 90274. If you have a question or complaint regarding the Service, please contact RespSafety’s Customer Service at email@example.com, Attention Customer Service. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
22. Contact Us.
If you have any questions about these Terms or otherwise need to contact RespSafety for any reason, you can reach us at Arbor Environmental, LLC dba RespSafety, 955 Deep Valley Drive, #3534, Palos Verdes Peninsula, CA 90274 with a copy to firstname.lastname@example.org or call us at 1 (877) 255-5757.