Avera Health Plans Consumer Platform Terms of Use

These Terms of Use shall apply to each individual (“User”) who accesses https://marketplace.averahealthplans.com/ (the “Platform”). Please read these Terms of Use carefully. By accessing or using the Platform, you accept and agree to be bound and abide by these Terms of Use as well as any policies, addenda or other documents incorporated herein by reference. If you do not want to agree to these Terms of Use, you must not access or use the Platform. If you are accessing the Platform in your capacity as an insurance agent or representative of an insurance agency, you are also subject to the Avera Health Plans Agent Platform Terms of Use.

1. ELIGIBILITY TO USE THE PLATFORM

The Platform is intended only for users who are 18 years of age or older and reside in the United States or any of its territories or possessions. By agreeing to these Terms of Use, you represent and warrant that: (a) you are at least 18 years old and reside in the United States or its territories; (b) you have not previously been suspended or removed from the Platform; and (c) your use of the Platform complies with any and all applicable laws and regulations and you will use the Platform only as set forth in these Terms of Use. If you are using the Platform on behalf of an entity, organization or company, you represent and warrant that you have the authority to bind that organization to these Terms of Use and you agree to be bound by these Terms of Use individually and on behalf of that organization. If you do not meet these eligibility requirements, you must not access or use the Platform.

2. LICENSE TO USE THE PLATFORM

Subject to these Terms of Use, Avera Health Plans (“Avera Health Plans”) grants to User a limited, non-exclusive, non-assignable, non-transferable license to access and use the Platform for the permitted purposes set forth herein. Any other commercial use or exploitation of the Platform or any content, code, information, data or other materials transmitted through the Platform is strictly prohibited. In no event shall User use any trademark, trade name, service mark, icon, logo or other indicator of Avera Health Plans without Avera Health Plans’s advance, express, written permission in each instance. All rights not expressly granted to User hereunder are reserved to Avera Health Plans.

3. CREATION AND USE OF ACCOUNT

In order to use certain features of the Platform, you may be required to establish an account and obtain a login name and password (“Account Credentials”). You authorize Avera Health Plans to process any account transactions initiated through the use of your Account Credentials and you accept responsibility for all activities that occur under your account. You are solely responsible for maintaining the confidentiality of your Account Credentials. If you have reason to believe that your account is no longer secure, you must immediately notify us at customer_support@healthsherpa.com. In no event will Avera Health Plans be liable for the unauthorized use or misuse of your account or Account Credentials.

You are prohibited from violating or attempting to violate the security of the Platform, including, without limitation, (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; or (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Platform or any portion thereof without authorization, in violation of these Terms of Use or in violation of applicable law.

You agree not to share or disclose your Account Credentials to any third party. You agree that you are fully responsible for all activity occurring under your user ID. To the extent that you grant another party access to your account by sharing your Account Credentials, you will be responsible for any activities undertaken by such third party through the use of your account. User shall be responsible for any access to or use of the Platform by User or any person or entity using User’s Account Credentials, whether or not such access or use has been authorized by User.

You may not use any scraper, crawler, spider, robot or other automated means of any kind to access or copy data on the Platform or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Platform. iFraming is strictly prohibited. You may deep link to a feature or content on the Site only with the prior written permission of both HealthSherpa and the Centers for Medicare & Medicaid Services ("CMS").

Violations of system or network security may result in civil or criminal liability. Avera Health Plans will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of this Site or any activity being conducted on this Site.

Avera Health Plans shall have the right, in its sole discretion, to deactivate a User’s account or reset a User’s Account Credentials for any reason, including if it determines that suspicious activity or misuse of the account has occurred.

4. ACCEPTABLE USE OF THE PLATFORM

User may use the Platform only for lawful purposes and in accordance with these Terms of Use. You agree to be bound by the applicable provisions of the Avera Health Plans Acceptable Use Policy, incorporated herein and made part of these Terms of Use by reference. In particular, and without limitation, you agree not to do any of the following:

Post, distribute, or otherwise make available or transmit any data, text, medium or computer file, telephonic conversations, chat or email exchanges that Avera Health Plans, in its sole discretion, deems to be: (a) defamatory, abusive, harassing, insulting or threatening; (b) bigoted, hateful, or offensive; (c) vulgar, obscene, or sexually explicit; or (d) encouraging of or advocating illegal activity or discussing illegal activities with the intent to commit them;
Post, distribute, or otherwise make available or transmit any data, text, medium or computer file that (a) infringes any right of a third party under any domestic or international law, including but not limited to copyright, patent, trademark, trade secret or other proprietary right; or (b) violates any right of privacy or publicity of a third party in the absence of such third party's express permission to disseminate his or her personal information, voice or likeness;
Post, distribute or otherwise make available or transmit any software or files that contain a virus or other harmful component;
Impersonate any person or entity or misrepresent your identity or affiliation with another person or entity;
Delete any legal notices or disclaimers, including but not limited to copyright and trademark symbols, or modify any marks which you do not own or have express permission to modify.
Use the Platform in any manner that could disable, overburden, damage, or impair the Platform or interfere with any other party’s use of the Platform.
Use any robot, spider or other automatic device, process or means to access the Platform for any purpose, including monitoring or copying any of the material on the Platform.
Use any manual process to monitor or copy any of the material on the Platform or for any other unauthorized purpose without our prior written consent.
Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Platform, the server on which the Platform is stored, or any server, computer or database connected to the Platform.
Otherwise attempt to interfere with the proper working of the Platform.
Behave in an inflammatory, hostile, belligerent, rude or disrespectful manner towards Avera Health Plans’s employees or any other individual through or in connection with the Platform.

Avera Health Plans shall have the right, in its sole discretion, to deactivate your account if it believes that you have done any of the above.

5. USAGE MONITORING AND AUDITING

So that information provided through the Platform and HealthCare.gov remains accurate and available to you and all other visitors, we monitor network traffic to identify unauthorized attempts to upload or change information or otherwise cause damage to the websites. Use of HealthCare.gov constitutes consent to such monitoring and auditing. Unauthorized attempts to upload information and/or change information on these websites are strictly prohibited and are subject to prosecution under the Computer Fraud and Abuse Act of 1986 and Title 18 U.S.C. Sec.1001 and 1030.

6. ACCURATE INFORMATION

You agree to provide certain true, current, complete and accurate information about you as required by law, and to maintain and update such information as needed to keep it current, complete and accurate. You agree that, to the best of your knowledge, all information you submit through the Platform and to Healthcare.gov is accurate and complete.

You are solely responsible for the credit card or bank account information you provide to Avera Health Plans and must promptly inform Avera Health Plans of any changes thereto (e.g., change of expiration date or account number). We are neither responsible for any consequences resulting from your failure to provide notice nor for your providing outdated, incomplete or inaccurate information.

7. INTELLECTUAL PROPERTY

The Platform and its entire contents, features and functionality, including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof (collectively, “Content”), are owned by Avera Health Plans, healthcare.gov, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.

These Terms of Use permit you a limited license to access and use the Platform for the permitted purposes set forth herein. You may not reproduce, republish, reverse-engineer, copy, upload, download, display, modify, interfere with, circumvent, license, transmit, or distribute any feature of the Platform, including materials retrieved from the Platform, any security or access control mechanism, or the underlying code in any form or by any means or for any commercial or other purpose not expressly authorized under these Terms of Use. Nothing herein is meant to transfer any right or license to the underlying code of the Platform.

If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Platform in violation of these Terms of Use, your right to use the Platform will cease and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Platform or any content on the Platform is transferred to you, and all rights not expressly granted to you herein are reserved by Avera Health Plans. Any use of the Platform not expressly permitted by these Terms of Use is a violation of these Terms of Use and may violate copyright, trademark, and other laws.

If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Platform (“Feedback”), then you hereby grant Avera Health Plans an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Platform and create other products and services.

8. TRADEMARKS

Avera Health Plans’s name, logo, and all related names, logos, product and service names, designs and slogans are trademarks of Avera Health Plans. You must not use such marks without the prior written permission of Avera Health Plans. All other names, logos, product and service names, designs and slogans on the Platform are the trademarks of their respective owners.

9. USER REPRESENTATIONS AND WARRANTIES

User represents, warrants and covenants that:

User will use the Platform only for lawful purposes and in strict conformance with these Terms of Use.
All information submitted through the Platform by User is accurate and complete.

10. ACCURACY OF CONTENT AND QUOTES

Although Avera Health Plans attempts to ensure the integrity and accuracy of the Platform, it makes no representations, warranties or guarantees whatsoever as to the correctness or accuracy of the Platform and Content thereon. It is possible that the Platform could include typographical errors, inaccuracies or other errors, and that unauthorized additions, deletions and alterations could be made to the Platform by third parties. In the event that an inaccuracy arises, please inform Avera Health Plans so that it can be corrected. Avera Health Plans reserves the right to unilaterally correct any inaccuracies on the Platform without notice. Information contained on the Platform may be changed or updated without notice. Additionally, Avera Health Plans shall have no responsibility or liability for information or Content posted to the Platform from any non-Avera Health Plans affiliated third party.

Avera Health Plans's quotes are based on the information consumers provide on our detailed questionnaires. However, these quotes could change based on additional or contradictory information that emerges during the final insurance underwriting process. Additionally, in the event a quote shows an incorrect price due to typographical error or error in pricing information received from our carriers, the correct quotation based on our carriers’ filed rates shall control.

Product information and descriptions contained on the Platform are not intended to be complete descriptions of all applicable terms, exclusions and conditions, but are provided solely for informational purposes. Please refer to the actual policy for complete details of coverage under a specific policy.

11. NO MEDICAL ADVICE

The content of the Platform, including without limitation, text, copy, audio, video, photographs, illustrations, graphics and other visuals, is for informational purposes only and does not constitute professional medical advice, diagnosis, treatment or recommendations of any kind. You should always seek the advice of your qualified heath care professionals with any questions or concerns you may have regarding your individual needs and any medical conditions. Avera Health Plans does not recommend or endorse any specific tests, physicians, products, procedures, opinions or other information that may be included on the Platform. Reliance on any information appearing on the Platform, whether provided by Avera Health Plans, its content providers, insurance companies, its clients, visitors to the Platform or others, is solely at your own risk.

12. PLATFORM AVAILABILITY

You acknowledge that the Internet is neither owned nor controlled by any one entity. As a result, Avera Health Plans cannot guarantee that any given User shall be able to access Avera Health Plans's server at any given time. Avera Health Plans represents that it shall make commercially reasonable efforts to ensure that its server is available as widely as possible and with as little service interruption as possible. Avera Health Plans shall not be liable for any damages arising out of the unavailability of the Platform.

13. PLATFORM SECURITY

Avera Health Plans has security measures in place that seek to mitigate risk and use commercially reasonable procedures and technologies to help protect the confidentiality of any PII collected through the Platform, in accordance with CMS requirements. However, no website can be absolutely protected against intentional or malicious intrusion attempts despite our precautions. Furthermore, Avera Health Plans does not control the devices, computers, or network through which you access the Platform or over which you may choose to send PII or payment information to the Platform, and therefore cannot prevent potential interceptions or compromises to your information while in transit to the Platform. Avera Health Plans makes no guarantee to User as to the security, integrity, or confidentiality of any information transmitted to or from the Platform. Avera Health Plans is committed to safeguarding your information to the best of its ability but cannot guarantee the security of electronic communications or transmissions made over the Internet.

Avera Health Plans makes no representations whatsoever about any other website that you may access through the Platform. When you access a non-Avera Health Plans website, please understand that it is independent from Avera Health Plans, and that Avera Health Plans has no control over the content on that website. In addition, a link to a non- Avera Health Plans website does not mean that Avera Health Plans endorses or accepts any responsibility for the content, or the use, of the linked website. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third party websites linked to the Platform, you do this entirely at your own risk.

14. DISCLAIMER OF WARRANTIES

THE PLATFORM, INCLUDING WITHOUT LIMITATION, ALL CONTENT, FUNCTION, MATERIALS AND SERVICES PROVIDED THROUGH THE PLATFORM ARE PROVIDED “AS IS” AND “AS AVAILABLE.” HEALTHSHERPA MAKES NO EXPRESS OR IMPLIED WARRANTIES OR GUARANTEES ABOUT THE PLATFORM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEALTHSHERPA HEREBY DISCLAIMS ALL SUCH WARRANTIES WITH RESPECT TO THE PLATFORM, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES OR UNINTERRUPTED ACCESS, AND ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, USEFULNESS, OR CONTENT OF INFORMATION. HEALTHSHERPA DOES NOT WARRANT OR REPRESENT THAT ANY MATERIAL ON THE PLATFORM IS ACCURATE, COMPLETE, CURRENT, RELIABLE, OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. HEALTHSHERPA MAKES NO WARRANTY THAT THE PLATFORM WILL MEET USERS’ EXPECTATIONS OR REQUIREMENTS. NO INFORMATION OR MATERIALS, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IF YOU ARE DISSATISFIED WITH THE PLATFORM, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE PLATFORM. YOU AGREE THAT YOUR USE OF THE PLATFORM IS SOLELY AT YOUR OWN RISK.

WARRANTIES RELATING TO PRODUCTS OR SERVICES OFFERED, SOLD AND FACILITATED BY AND THROUGH HEALTHSHERPA ARE SUBJECT TO SEPARATE WARRANTY TERMS AND CONDITIONS, IF ANY, PROVIDED WITH OR IN CONNECTION WITH THE APPLICABLE PRODUCTS OR SERVICES.

15. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL HEALTHSHERPA OR ITS REPRESENTATIVES BE LIABLE FOR DAMAGES OF ANY KIND UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT OR OTHERWISE), ARISING OUT OF OR IN CONNECTION WITH (A) YOUR USE OF THE PLATFORM; (B) YOUR INABILITY TO USE OR ACCESS THE PLATFORM; (C) UNAUTHORIZED USE OF YOUR ACCOUNT CREDENTIALS; (D) ANY INFORMATION, CONTENT OR FUNCTIONALITY OFFERED THROUGH THE PLATFORM; (E) ANY TRANSACTION CONDUCTED THROUGH OR FACILITATED BY THE PLATFORM; (F) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, DEFICIENCIES OR OTHER INACCURACIES IN THE PLATFORM; (G) ANY UNAUTHORIZED ACCESS TO, USE, DISCLOSURE OR ALTERATION OF, YOUR TRANSMISSIONS OF DATA INCLUDING, WITHOUT LIMITATION, PERSONALLY IDENTIFIABLE INFORMATION; (H) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE PLATFORM; OR (I) ANY EVENT BEYOND HEALTHSHERPA’S REASONABLE CONTROL. TO THE EXTENT ANY OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, HEALTHSHERPA’S MAXIMUM AGGREGATE LIABILITY IN RELATION TO ANY EVENT OR SERIES OF RELATED EVENTS WILL BE LIMITED TO ONE HUNDRED DOLLARS ($100). IN NO EVENT SHALL HEALTHSHERPA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF HEALTHSHERPA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN, HEALTHSHERPA'S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW IN SUCH STATES.

16. INDEMNIFICATION BY USER

You agree to release, indemnify, defend and hold Avera Health Plans and its agents, employees, officers, directors, shareholders, contractors, affiliates and assigns harmless from all claims, damages, fines, penalties, costs, expenses (including reasonable attorneys' fees), or any other liabilities relating to or arising out of (a) the breach of your representations, warranties and obligations under these Terms of Use; (b) use of the Platform other than as permitted by these Terms of Use by you or anyone using your Account Credentials, whether authorized by you or not; (c) infringement of any intellectual property or other proprietary right of any third party by you; (d) violation of Avera Health Plans's Acceptable Use Policy or other operating rules or policies communicated to you by Avera Health Plans; or (e) any information or data you supplied to Avera Health Plans. The obligations set forth in this Section will survive any termination of User’s account or these Terms of Use.

17. SUSPENSION

Avera Health Plans may, in its sole discretion, suspend or terminate your account at any time, for any reason or no reason, with or without notice. You may terminate your account at any time by contacting us at customer_support@healthsherpa.com. Avera Health Plans reserves the right to modify or discontinue the Platform at any time (including by limiting or discontinuing certain features of the Platform), temporarily or permanently, upon reasonable notice to you. Avera Health Plans will have no liability for any change to the Platform or any suspension or termination of your access to or use of the Platform.

18. AUTHORITY TO MODIFY PLATFORM AND SERVICES

Avera Health Plans may upgrade, modify, change or enhance the Platform and convert User to a new version of the Platform or revise these Terms of Use at any time in its sole discretion, with or without notice. Any such revision or change will be binding after posting of the revised Terms of Use or change to the Platform on Avera Health Plans’s website, or upon notification to you by e-mail. By continuing to use the Platform after any revision to these Terms of Use or change in the Platform, you agree to abide by and be bound by any such revisions or changes. If you do not agree to such revisions or changes, you may cancel your account by sending Avera Health Plans a notice, as set forth herein, stating that you would like to cancel your account. Certain provisions of these Terms of Use may be superseded by expressly designated legal notices or terms located on particular pages within this Site.

19. GENERAL TERMS

A. Entire Agreement. These Terms of Use, together with our Acceptable Use Policy and Privacy Notice, constitute the entire agreement between you and Avera Health Plans relating to your use of the Platform, and supersede any previous agreements, understandings, representations and warranties (both oral and written) with respect to your use of the Platform.

B. Assignment. You may not assign or transfer these Terms of Use or your rights under these Terms of Use, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms of Use at any time without notice or consent.

C. No Waiver. The failure to require performance of any provision of these Terms of Use will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms of Use, or any provision of these Terms of Use, be a waiver of any subsequent breach or default or a waiver of the provision itself.

D. Use of Headings. Use of section headers in these Terms of Use is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms of Use the use of the word “including” means "including but not limited to."

E. Severability. If any part of these Terms of Use is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

F. Notices. Except as expressly provided otherwise herein, all notices to Avera Health Plans shall be in writing (either paper or electronic format) and delivered either via email to customer_support@healthsherpa.com or via postal mail to Avera Health Plans, Inc., ATTN: Customer Service, 1215 19th Street, 2nd Floor, Sacramento, CA, 95811. All notices to you shall be delivered to your mailing address or e-mail address as provided in your account information (as updated by you pursuant to these Terms of Use). You authorize us to contact you as our customer via telephone, at the number provided by you in your account information, e-mail or postal mail regarding information that we deem is of potential interest to you. Notices and announcements may include commercial e-mails, and other notices describing changes, upgrades, new products and services or other relevant matters.

G. Dispute Resolution and Arbitration. You agree that disputes arising under these Terms of Use will be resolved by binding, individual arbitration, and by accepting these Terms of Use, YOU AND HEALTHSHERPA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.[F & L15] Your rights will be determined by a neutral arbitrator instead of a judge or jury. Any arbitration between you and Avera Health Plans will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”). Notwithstanding the foregoing, nothing in these Terms of Use will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) pursue an enforcement action through the applicable federal, state, or local governmental agency if that right of action is available; (b) seek injunctive relief in a court of law in aid of arbitration; or (c) to file suit in a court of law to address an intellectual property infringement claim.

If you desire to assert a claim against Avera Health Plans, and you therefore elect to seek arbitration, you must first send to Avera Health Plans, by certified mail, a written notice of your claim ("Notice"). The Notice to Avera Health Plans should be addressed to: customer_support@healthsherpa.com ("Notice Address"). If Avera Health Plans desires to assert a claim against you and therefore elects to seek arbitration, it will send, by certified mail, a written Notice to the most recent address we have on file or otherwise in our records for you. A Notice, whether sent by you or by Avera Health Plans, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If Avera Health Plans and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Avera Health Plans may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by Avera Health Plans or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration from the AAA at www.adr.org. If you are required to pay a filing fee, after Avera Health Plans receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for more than US $2,000. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by requesting them from us by writing to us at the Notice Address. The arbitrator is bound by the terms of these Terms of Use. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of these Terms of Use, including this arbitration agreement. Unless Avera Health Plans and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. (If you reside outside of the United States, any arbitration hearings will take place in your country of residence at a location reasonably convenient to you, but will remain subject to the AAA Rules including the AAA rules regarding the selection of an arbitrator). If your claim is for US $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of Avera Health Plans’s last written settlement offer made before an arbitrator was selected (or if Avera Health Plans did not make a settlement offer before an arbitrator was selected), then Avera Health Plans will pay you the amount of the award or US $1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Each party shall pay for its own costs and attorneys' fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for payment or recovery attorneys’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.

YOU AND HEALTHSHERPA 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, unless both you and Avera Health Plans agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.

H. Governing Law. These Terms of Use are governed by the laws of the State of California without regard to conflicts of law principles. You and Avera Health Plans agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Sacramento County, California for resolution of any lawsuit or court proceeding permitted under these Terms of Use.

I. Exclusion of Third-Party Rights. Except as otherwise set forth in these Terms of Use, these Terms of Use are for the benefit of you and Avera Health Plans and are not intended to benefit any third party or be enforceable by any third party. The exercise of our and your rights in relation to these Terms of Use is not subject to the consent of any third party.

J. Privacy Policy. Please read our Privacy Notice for information relating to our collection, use, storage, and disclosure of personal information and payment information. The Privacy Policy is incorporated by this reference into, and made a part of, these Terms of Use.

K. Additional Terms. Your use of the Platform is subject to all additional terms, policies, rules, or guidelines applicable to the Platform or certain features of the Platform that we may communicate to you (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms of Use.

L. Consent to Electronic Communications. By providing us with your contact information, you agree to receive communications, including via e-mail, voice calls, and text messages from or on behalf of Avera Health Plans at the email address or telephone number you provided, even if that number is on a national or state “Do Not Call Registry.” These calls will be for purposes related to your use of the Platform or our other services, such as to provide you with help or information on using the Platform. Standard text messaging and telephone minute charges applied by your cell phone carrier may apply. Avera Health Plans may, without further notice or warning and in our discretion, monitor and/or record telephone conversations for our business purposes, such as quality assurance and training purposes and to protect our rights and the rights of others. IF YOU WISH TO OPT OUT OF MARKETING EMAILS, YOU CAN UNSUBSCRIBE BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE EMAIL ITSELF. IF YOU WISH TO OPT OUT OF TEXTS, YOU MAY REPLY “STOP” FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. You understand that you may continue to receive communications while we process your opt-out request, and you may also receive a communication confirming the receipt of your opt-out request.