CHIRY PROVIDER PARTICIPATION AGREEMENT
The following Chiry Provider Participation Agreement, together with the Chiry Terms of Service and Chiry Privacy Notice incorporated by reference below (collectively, this “Agreement”), governs (i) the use by providers such as chiropractors, physical therapists, massage therapists, nutritionists, dieticians, physical trainers, or other health professionals (each a “Provider”) of the Chiry mobile device application (“Mobile App”) and website https://chiry.app/ (“Website”) (together, the “Chiry Platform”), and (ii) the relationship between Chiry Corporation (“Chiry”), a Delaware corporation, and you as a Provider.
Chiry Corporation provides brokerage services between Providers and individuals seeking to obtain professional health services (“Health Services”). Chiry is not a Provider.
By signing up and registering with Chiry and by accessing or using any Chiry Platform, Provider accepts this Agreement, and in doing so such Provider represents and warrants to Chiry that he or she has the legal right, authority, and capacity to enter into this Agreement. You (as a Provider) are not permitted to access or use the Chiry Platform or accept this Agreement if you do not meet any of the requirements set forth below. Please read this Agreement carefully before using the Chiry Platform. Use of the Chiry Platform is conditioned on your agreement to all of the terms and conditions contained in this Agreement.
If you do not agree to any of the terms of this Agreement, you are prohibited from accessing or using the Chiry Platform unless and until you enter into this Agreement.
Please refer to the Chiry Privacy Notice for information about how we collect, use and disclose information about Providers and other users of the Chiry Platform.
The terms of service governing access to and use of the Chiry Platforms, including our mobile application and our website, are located here (the “Chiry Terms of Service”). The Chiry Terms of Service, as well as the Chiry Privacy Notice, are incorporated herein by reference and form part of this Agreement.
1. Provider’s Operating Authority and Compliance with Law.
(a) Provider represents and warrants that it is legally qualified in accordance with all applicable federal, state, local, provincial, foreign, and international laws, statutes, regulations, rules, and ordinances (collectively, “Applicable Laws”) to provide the Health Services contemplated by this Agreement.
(b) Provider agrees to disclose whether Provider has been the subject of disciplinary or legal proceedings related to the practice of their Health Services (whether before entering this Agreement or during the term of this Agreement), including whether Provider’s license or certification has been revoked, suspended, or otherwise negatively impacted by such disciplinary or legal proceedings. Provider shall immediately notify Chiry of any pending or threatened disciplinary or legal proceeding which could negatively impact Provider’s license or certification.
(c) Provider agrees to comply with all Applicable Laws in the performance of the Services and its obligations under this Agreement, including all Applicable Laws pertaining to Provider’s particular Health Services.
(a) Provider is an entity separate from, and independent of, Chiry. Neither Provider nor any employees or independent contractors of Provider who may provide Health Services under this Agreement are employees or independent contractors of Chiry for any purpose, including but not limited to purposes of Social Security (FICA) taxes, unemployment insurance, taxes, Worker's Compensation benefits, health insurance, or any other benefits which typically accompany an Employer-Employee relationship. Chiry will not be liable for withholding any amounts from Provider’s gross compensation, nor will Chiry provide any of the above-mentioned benefits to Provider or any of the employees or independent contractors of Provider. Provider will be solely responsible for withholding payment of all such taxes, if applicable, and for the provision of such benefits to the employees of Provider, by independent means.
(b) Except as specifically provided for herein or as may be otherwise authorized by Chiry in writing, neither Provider nor any of Provider’s employees or independent contractors will have any authority, implied or otherwise, to execute any contract or other agreement on behalf of Chiry, or to make any representation, commitment or undertaking on behalf of Chiry.
3. Provider Licensing Requirements.
(a) Provider must be licensed or certified by all applicable governing bodies to practice or render the particular Health Services offered by Provider in the state or jurisdiction Provider intends to offer the Health Services. For example, if Provider intends to offer chiropractic services, Provider must have obtained a Doctor of Chiropractic degree and be licensed by the state in which Provider intends to offer the Health Services. As another example, if Provider intends to offer massage therapy services, Provider must obtain a license or certification from the state in which Provider intends to offer the Health services if the state requires a license or certification to offer message therapy services within the state.
(b) Provider will be required to provide to Chiry proof of a valid license or certification to practice or render the Health Services. Provider must maintain a valid license or certification throughout the Term of this Agreement as applicable to the Health Services.
4. Provider Insurance Requirements.
(a) Provider must procure and maintain, at its sole cost and expense, the following insurance as applicable to Provider’s Health Services:
(i) Automobile liability insurance (“Auto Insurance”) covering all owned, non-owned, and hired vehicles.
(ii) Professional liability insurance covering the Health Services of Provider rendered under this Agreement.
(iii) General liability insurance covering the acts of Provider rendered under this Agreement.
(iv) Malpractice insurance covering the Health Services of Provider rendered under this Agreement.
(b) All insurance policies of Provider required by this Agreement must, as applicable, be primary and must waive subrogation and contribution against Chiry. Provider represents and warrants that there are no exclusions or limitations under any such policies that would prevent coverage for any liability assumed by Provider under this Agreement. Provider will furnish to Chiry written certificates obtained from the insurance provider showing that such insurance has been procured, is properly maintained, and indicating the expiration date of the relevant policies. Provider will provide Chiry written notice of cancellation or material modification of any of the foregoing policies at least thirty (30) days prior to such cancellation or modification. In addition, Chiry must be included or added as an additional insured on Provider’s insurance policies, in each case, as evidenced by an endorsement on the certificates of insurance. Upon Chiry’s written request, Provider will provide Chiry with copies of the foregoing insurance policies. All of the foregoing insurance policies must be procured from insurance companies rated at least A-VII or better by AM Best.
5. Performance of Services by Provider.
(a) Provider is solely responsible for controlling the method, manner, and means of accomplishing the performance of Health Services. Provider must uphold the highest quality standards when rendering the Health Services, and Provider is solely responsible for all damages, reimbursements, refunds, or other similar costs for providing Health Services which are not of the highest quality standards.
(b) In the performance of Health Services, Provider will be solely responsible for the acts and omissions of each of its employees, agents, representatives, contractors (including independent contractors and subcontractors) and any other service providers engaged by Provider.
(c) The relationship between the Parties is solely as independent business enterprises, each of which operates a separate and distinct business enterprise that provides a service outside the usual course of business of the other. This Agreement is not an employment agreement. Provider confirms the existence and nature of such contractual relationship each time Provider or a representative of Provider accesses the Chiry Platform. Provider assumes full responsibility for all taxes, assessments, insurance (including workers’ compensation, unemployment compensation, disability, pension, and social security insurance) and other financial obligations due to or otherwise involving any representative of Provider related to the Health Services. Chiry is not an agent of Provider and Provider is not an agent of Chiry. This Agreement does not create a joint venture, joint enterprise or partnership between Chiry and Provider.
(d) Provider will furnish all equipment necessary or required for the performance of the Health Services (the “Equipment”). Provider will maintain all Equipment (i) in good repair and clean, working condition, (ii) in full compliance with Applicable Laws, and (iii) free of contamination and infestation.
6. Payments by Chiry to Provider for Services.
(a) Subject to the terms and conditions hereof, for each instance of Health Services rendered by Provider, Chiry will facilitate, through the Chiry Platform, payment to Provider of payments received by Chiry through the Chiry Platform from customers for the Health Services rendered by Provider to customers.
(b) Chiry will facilitate payment to Provider through the Chiry Platform within thirty (30) days of Chiry receiving payment from the customer through the Chiry Platform for the Health Services rendered by Provider.
(c) Provider agrees that Chiry may withhold and offset from any amounts otherwise payable to Provider or any of its affiliates any amount that Provider or any of its affiliates owes or may owe to Chiry.
(d) Provider agrees that (i) as between Chiry and Provider, Chiry shall have the exclusive right to handle the billing of Health Services, and (ii) as between Chiry and each customer, Chiry is solely responsible for paying Provider’s payments when received from customer. Provider hereby irrevocably waives any claims Provider may have against any customer to the extent related to the payment of Provider’s Health Services.
7. Indemnification by Provider.
(a) Provider agrees to defend, indemnify, and hold harmless Chiry, as well as the directors, officers, employees, agents and representatives of Chiry (collectively, the “Indemnified Parties”), from and against all losses, liabilities, damages, claims, judgments, fines, penalties, interest, costs or expenses, including reasonable attorney’s fees, arising out of or related to the offering or rendering of Health Services or the breach of this Agreement by Provider or any Provider representative (collectively, the “Indemnified Claims”), including Indemnified Claims for or related to personal injury (including death), property damage, data protection and security, confidentiality, privacy, identity theft, personal information, or Provider’s possession, use, maintenance, custody or operation of Equipment or of Equipment that is owned by a party other than Provider.
(b) Notwithstanding the foregoing, Provider’s defense, indemnification and hold harmless obligations under Section 7(a) will not apply to the extent that any Indemnified Claim is finally determined by a court of competent jurisdiction to have been caused by the gross negligence or willful misconduct of an Indemnified Party. Each director, officer, employee, agent and representative is each a third-party beneficiary of this Section 7 and is entitled to enforce the obligations of Provider set forth in this Section 7 directly against Provider as if such Indemnified Party was a party hereto. To the extent permitted by Applicable Law, Provider hereby expressly waives any exclusive remedy defense, including any such defense available under any workers’ compensation or other occupational accident statutory regime, to the extent that any such defense conflicts with Provider’s obligations under this Section 7.
8. Non-Solicitation by Provider.
During the term of this Agreement and for a period of six (6) months after its termination, Provider will not offer or render any Health Services to customers of Chiry if: (a) the availability to offer or render such Health Services became known to Provider during the course of performing the Health Services contemplated by this Agreement or (b) the opportunity to offer or render such health services was first tendered to Provider by Chiry.
9. Provider’s Consent to Share Telematics Data with Chiry.
(a) For purposes of this Agreement, the following terms shall have the following meanings:
(i) “Device Data” means location and other data that is created, captured, entered into or processed by any Telecommunications Device used by Provider.
(ii) “Telecommunications Devices” means telecommunications technologies and related hardware, equipment, software and services, including geolocation and tracking technologies, electronic logging devices, sensors, and visibility and/or location aggregators.
(iii) “Telecommunications Provider” means a provider of Telecommunications Devices.
(b) Provider hereby agrees to the transfer and transmission of its Device Data by Telecommunications Providers to Chiry for use at Chiry’s sole discretion. Such transfer and transmission of Device Data to Chiry may be made by the Telematics Provider or such other party as may be necessary to effectuate this transfer and transmission. Provider authorizes the Telecommunications Provider or such other parties to take such actions as may be necessary to effectuate the transfer and transmission of Provider’s Device Data to Chiry. Such Telecommunications Providers shall be third-party beneficiaries of this Section 9.
(c) Provider hereby grants to Chiry a non-exclusive, transferable, sublicensable, worldwide, fully-paid up, royalty-free and revocable (in accordance with Section 9(e)) license under its rights to the Device Data to use, distribute, reproduce, display, perform, copy, modify, and create derivative works based upon the Device Data. Chiry may share such Device Data with third parties in accordance with its publicly available Chiry Privacy Notice, as it may be updated from time to time in accordance with its terms, which is currently located here and is incorporated herein by reference (the “Chiry Privacy Notice”).
(d) The Parties acknowledge and agree that the Device Data may contain or reflect personal information, including Provider location data. Provider represents and warrants that it has all rights necessary, and has provided or will provide appropriate notice, and has obtained or will obtain any necessary consents from end users or other persons, for Provider to share Device Data with Chiry hereunder and for Chiry to use any personal information contained or reflected therein for purposes of fulfilling its obligations under this Agreement or other purposes identified in the Chiry Privacy Notice.
(e) The terms set forth in this Section 9 shall remain in effect until the valid termination of this Agreement.
10. Provider Location Information; Communication With Customers Through the Chiry Platform
Provider agrees to grant Chiry permission to track the location of Provider (including by tracking the location of Provider’s devices) and to share such location information with third parties, including the applicable customers of Chiry. Provider agrees to use the Chiry Platform to communicate with customers and to view and share documentation with customers.
11. Term and Termination of this Agreement; Survival Post-Termination.
The term of this Agreement shall continue indefinitely until terminated in accordance with the terms hereof. Chiry may terminate this Agreement at any time for any reason upon written notice to Provider. Provider may terminate this Agreement at any time upon five business days’ prior written notice to Chiry; provided that if Provider thereafter renders any Health Services facilitated by the Chiry Platform, this Agreement will apply to such Health Services. Section 6 through Section 8, Section 9 (with respect to Device Data shared prior to such termination) and this Section 11 through Section 19 will survive the termination of this Agreement. In addition, any rights and obligations of either Party with respect to matters that occurred prior to the termination of this Agreement will survive such termination.
12. Confidentiality and HIPAA.
(a) Neither Party may disclose any confidential information (including any trade secrets) that it may receive from the other Party or any of its affiliates in the course of providing Health Services hereunder to any third party without the prior written consent of the other Party. Neither Party may engage in any publicity, press activities, marketing or other public relations regarding the services provided hereunder and naming the other Party without the mutual written consent of the Parties. In addition, Provider shall not disclose to any third party any confidential information disclosed to Provider by Chiry in the course of providing Health Services. Each Party shall protect any confidential information received hereunder with a reasonable degree of care. The obligations set forth in this Section 11(a) shall survive termination of this Agreement.
(b) Notwithstanding Section 12(a), each Party may disclose confidential information (i) in connection with the performance of Health Services hereunder to such Party’s affiliates and its and their respective directors, officers and employees, as well as to its and their respective outside accountants, tax advisors and attorneys bound by a contractual or professional obligation to keep such information confidential, and (ii) pursuant to a judicial order or other governmental requirement or request. In addition, notwithstanding the foregoing, “confidential information” shall not include any information that: (A) is already known to the receiving Party at the time of disclosure or subsequently becomes known to the receiving Party, in each case, without violating any confidentiality obligation applicable to the receiving Party or any of its affiliates; (B) is or becomes publicly known without violating any confidentiality obligation applicable to the receiving Party or any of its affiliates; (C) is independently developed by the receiving Party or any of its affiliates without reference to or use of any such confidential information; or (D) is disclosed with the prior written consent of the disclosing Party.
(c) As a Provider you may have access to Protected Health Information (“PHI”) as well as “confidential information” of customers. Both are valuable and sensitive information and protected by law. This section sets out the terms and conditions under which information created or received by or on behalf of Chiry may be used or disclosed under state law and the Health Insurance Portability and Accountability Act and updated through HIPAA Omnibus Rule of 2013 (hereafter “HIPAA”).
(i) Protected Health Information (hereafter “PHI”) includes all identifiers under C.F.R. § 164.514 and defined under HIPAA as individually identifiable health information, held or maintained by you and Chiry that is transmitted or maintained in any form or medium, including through the Chiry Platform.
(ii) Disclosure and use of PHI or confidential information includes, but is not limited to, the display or distribution of PHI, in whole or in part, from any source or in any format (e.g., oral, electronic, paper, digital, internet, social networks, posting, FAX, etc.).
(iii) As a Provider, you agree to comply with the following terms:
1. All PHI available to you will be treated as confidential information.
2. You will not access any confidential information or PHI for which you have no responsibilities or need to know.
3. You will not use or disclose any confidential or PHI information in violation of HIPAA or any other applicable law.
4. All confidential and PHI information you receive will be held and treated as confidential and will not be disclosed in any manner whatsoever, in whole or part, except as authorized by HIPAA and state law.
5. You will not divulge, copy, release, sell, loan, review, alter or destroy any confidential information or PHI except as properly authorized by Chiry and within the scope of the Health Services.
6. You will immediately report suspected disclosures of PHI or confidential information to Chiry.
(iv) Upon the termination of this Agreement, disclosure of confidential information or PHI is prohibited indefinitely.
(v) Under state and federal law and regulations governing an individual’s right to privacy, Provider may be subjected to civil fines for which Prover may be personally responsible and criminal sanctions for unlawful or unauthorized access to or use or disclosure of an individual’s confidential information.
(vi) If provider violates any of the terms set out above, Provider may be subject to disciplinary actions, including loss of privileges, termination of this Agreement, legal action for monetary damages or injunction, or both, or any other remedy available to the Chiry.
13. Chiry Disclaimers.
No Warranties. CHIRY PROVIDES THE CHIRY PLATFORM ON AN “AS IS, WHERE IS” BASIS WITHOUT WARRANTY OF ANY KIND. CHIRY DISCLAIMS ALL WARRANTIES AND CONDITIONS EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTY OF NONINFRINGEMENT, ANY WARRANTY THAT THE CHIRY PLATFORM WILL OPERATE UNINTERRUPTED OR ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CHIRY OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE CHIRY PLATFORM OR SERVICES PROVE DEFECTIVE, PROVIDER ASSUMES THE ENTIRE RISK OF LOSS OR DISRUPTION TO PROVIDER’S BUSINESS .
No Obligations. CHIRY ACCEPTS NO OBLIGATION REGARDING PROVIDER’S USE OF THE CHIRY PLATFORM EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT. IN PARTICULAR, CHIRY DISCLAIMS ANY OBLIGATION TO MONITOR THE OPERATION OF THE CHIRY PLATFORM OR ADDRESS ANY FAILURES OR FAULTS THAT COME TO ITS ATTENTION.
Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, UNDER NO CIRCUMSTANCES WILL CHIRY, ITS SUPPLIERS, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES OR AGENTS HAVE ANY OBLIGATION OR LIABILITY TO PROVIDER HEREUNDER FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES INCURRED BY THE OTHER PARTY (INCLUDING DAMAGES FOR DEATH, INJURY TO PERSON OR PROPERTY, LOST BUSINESS, LOST PROFITS OR DAMAGES TO BUSINESS REPUTATION), REGARDLESS OF HOW SUCH DAMAGES ARISE AND REGARDLESS OF WHETHER OR NOT A PARTY WAS ADVISED SUCH DAMAGES MIGHT ARISE. IN THE EVENT THAT CHIRY IS FOUND LIABLE FOR ANY REASON UNDER THIS AGREEMENT, IN NO CASE SHALL CHIRY’S LIABILITY FOR ACTUAL DAMAGES IN THE AGGREGATE EXCEED THE AMOUNTS YOU PAID FOR ACCESS TO THE CHIRY PLATFORM OR, IF YOU RECEIVED THE ACCESS FOR FREE, IN NO CASE WILL CHIRY’S LIABILITY EXCEED $100.00
14. Entire Agreement.
This Agreement (including all documents incorporated into this Agreement by reference) constitutes the entire agreement of the Parties regarding the subject matter hereof. This Agreement amends, restates and supersedes in its entirety any other agreements regarding the subject matter hereof.
(a) Provider may not assign or transfer this Agreement in whole or in part without the prior written consent of Chiry. Chiry may assign this Agreement to any affiliate of Chiry or to any acquiror (or affiliate thereof) in connection with the sale of all or substantially all of Chiry’s equity, business or assets. This Agreement will be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.
(b) In the event that any portion of this Agreement would result in a violation of any Applicable Law, the Parties agree that such portion will be severable and the remaining provisions of this Agreement will continue in full force and effect.
(c) Failure of Chiry to insist upon Provider’s performance under this Agreement or to exercise any right or privilege arising hereunder will not be a waiver of any Chiry’s rights or privileges herein.
(d) Upon Chiry’s request, Provider will provide documents evidencing compliance with the terms and conditions of this Agreement, as well as written records of all Health Services rendered hereunder, regardless of whether this Agreement remains in effect at the time of such request.
(e) When providing Health Services, Provider Representatives must comply with Chiry’s non-discrimination policy. Chiry and its affiliates prohibit discrimination against anyone based on race, religion, national origin, disability, sexual orientation, sex, marital status, gender identity, age or any other characteristic protected under applicable law. In addition, aggressive, confrontational, and harassing behavior is not allowed. Any Provider found to have violated these prohibitions will lose access to the Chiry Platforms.
(f) The words “include,” “includes” and “including” as used in this Agreement shall be read as followed by the words, “without limitation,” whether or not such words appear in each instance herein. The Section headings set forth in this Agreement are for convenience only and shall not affect the interpretation of this Agreement.
All notices or other communications required or permitted by this Agreement will be effective upon receipt; will be in writing; and will be transmitted electronically or personally delivered, or mailed by registered or certified mail, return receipt requested, or sent by an overnight delivery service that provides proof of delivery as follows:
If to Chiry:
3304 Wooded Hill Arch
Chesapeake, VA 23321
with copy to: firstname.lastname@example.org
If to Provider: To Provider via the Chiry Platform or to any email or mailing address provided by Provider to Chiry.
17. Governing Law.
This Agreement and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the state of Delaware, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 18 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Chiry are not required to arbitrate will be the state and federal courts located in Delaware, and you and Chiry each waive any objection to jurisdiction and venue in such courts.
18. Dispute Resolution.
(a) If you have a dispute with us regarding the Health Services or the Chiry Platform, please contact us email@example.com and we will try to resolve your dispute to the best of our ability. For convenience, the Chiry Platform and Health Services may be collectively referred to herein as the “Services”. If we are unable to successfully resolve your issues within a reasonable amount of time, then the terms of this Section 18 will apply, but only if you are an individual who is using the Services and Content for your own personal use and are not representing a legal entity.
(i) Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or content, as applicable (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Chiry agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this Agreement, and that you and Chiry are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement.
(ii) Exceptions. As limited exceptions to Section 18(i) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
(iii) Starting Arbitration. If you want to begin arbitrating a Dispute, you must send a letter to us at Chiry Corporation, 3304 Wooded Hill Arch, Chesapeake, VA 23321 requesting arbitration and describing the Dispute. If we want to begin arbitrating a Dispute, we’ll send such a letter to you at the email address or street address that you provided.
(iv) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
(v) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. We’ll pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than $10,000, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
(vi) Injunctive and Declaratory Relief. Except as provided in Section 17(ii) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
(vii) Class Action Waiver. YOU AND CHIRY 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. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
(viii) Severability. With the exception of any of the provisions in Section 17(vii) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of this Agreement is invalid or unenforceable, the other parts of this Agreement will still apply.
19. Changes to this Agreement by Chiry.
This Agreement is subject to amendment, revision and/or update by Chiry from time to time. Changes that are not material will be effective immediately upon the posting of such changes to this Agreement (it being understood that this Agreement will be posted and publicly available on the internet). If any material changes are made by Chiry to this Agreement, Chiry will notify Provider that this Agreement has been revised via electronic mail, a notification within an Chiry Platform (which may be a general notification made to all Providers) or other means of written communication. Any such material changes to this Agreement will be effective upon the earlier of (a) the date Provider accepts the updated version of this Agreement or (b) thirty (30) calendar days following Chiry’s notice to Provider of the changes.