Last updated: June 14, 2023
Please read this Agreement carefully before accessing or using the Site or Services (as defined below). By accessing the Site or using the Services, you agree to be bound by all of the terms and conditions of this Agreement. MedPage Today, LLC operates this website (the "Site"), and the services related to or offered on the Site (the "Services"). These Services may include, without limitation, tools, applications, email services, bulletin and message boards, chat areas, news groups, forums, communities, calendars and downloadable mobile applications related to the Site or provided through the Site. MedPageToday.com may also contain advertisements, promotions and sponsored areas that are sold directly by Everyday Health Media, LLC, a sister company of MedPage Today, LLC.
THESE TERMS CONTAIN A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER.
This Site is for Informational Purposes Only
The Site and Services offer health, fitness and nutrition related information, but are designed for non-commercial, informational purposes only. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH OR THE CONTENT ON THE SITES OR SERVICES, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTHCARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH-RELATED ADVICE FROM YOUR HEALTH-CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE SITE OR SERVICES. THE USE OF ANY INFORMATION PROVIDED ON THE SITE OR SERVICES IS SOLELY AT YOUR OWN RISK. Nothing stated or posted on the Site or Services is intended to be, and must not be taken to be, the practice of medicine or counseling care. For the purposes of this agreement, the practice of medicine and counseling includes, without limitation, psychiatry, psychology, psychotherapy, the practice of pharmacy, nutrition and fitness counseling or providing health care treatment, instructions, diagnosis, prognosis or advice. Developments in medical research may impact the health, fitness and nutritional topics discussed on the Site or Services and no assurance can be given that the information contained in the Site or Services will always include the most recent findings or developments with respect to the particular material. We do not recommend or endorse any specific tests, physicians, clinics, procedures, opinions, products or other information that may appear on the Site or Services. If you rely on any of the information provided by this Site or the Services, our employees, or guests or visitors to the Site or Services, you do so solely at your own risk. The Site and Services may contain health- or medical-related materials that are sexually explicit. If you find these materials offensive, you may not want to use the Site or Services. References may be made to "off-label" or non-FDA approved uses of certain products on the Site and Services. Nothing stated or posted on the Site or Services is intended to be, and must not be taken to be, the practice of medicine or counseling care. For the purposes of this agreement, the practice of medicine and counseling includes, without limitation, psychiatry, psychology, psychotherapy, the practice of pharmacy, nutrition and fitness counseling or providing health care treatment, instructions, diagnosis, prognosis or advice. Developments in medical research may impact the health, fitness and nutritional topics discussed on the Site or Services and no assurance can be given that the information contained in the Site or Services will always include the most recent findings or developments with respect to the particular material. We do not recommend or endorse any specific tests, physicians, clinics, procedures, opinions, products or other information that may appear on the Site or Services. If you rely on any of the information provided by this Site or the Services, our employees, or guests or visitors to the Site or Services, you do so solely at your own risk. The Site and Services may contain health- or medical-related materials that are sexually explicit. If you find these materials offensive, you may not want to use the Site or Services. References may be made to "off-label" or non-FDA approved uses of certain products on the Site and Services.
Copyright and Trademarks
The Site and/or Services may contain message boards, chats and other public forums or display the contents of social media platforms or services. Message boards, chats and other public forums are intended to serve as discussion centers for users and subscribers of the Site and Services. These are public forums and any information that you post on the Site or Services may be seen by the public. Your use of third-party social media platforms and services is governed by their applicable terms of service, privacy policies, and other user agreements. When posting information on the Site or Services, use good taste when discussing sensitive topics and treat others with respect and honesty. Be fair and informative. Post honest and valuable information and don't post rumors or negative opinions that are not supported by facts. Unless the information in your post arises directly from your personal experience, appropriate references to any health-related or medical information you provide must be included in your post. In addition to the prohibited activities described above, when posting information and media on the Site or Services you must not:
- Post anything that interferes with or disrupts the Site or the operation thereof, including files that contain malicious code, viruses, corrupted files or any other similar software or programs that may damage the operation of any computer, network or the web site;
- Post statements or materials that violate other contractual or fiduciary rights, duties or agreements;
- Post statements or materials that are bigoted, hateful, racially offensive, vulgar, obscene, pornographic, profane or otherwise objectionable, including language or images that typically would not be considered socially or professionally responsible or appropriate in person;
- Post statements or materials that encourage criminal conduct or that would give rise to civil liability or otherwise violate any law or regulation in any jurisdiction;
- Post statements or materials that in any way harm minors
- Post or upload personal information, pictures, videos or any other media of another person without their express permission or post information or materials that impersonate any other person or entity, whether actual or fictitious;
- Post anything that violates the privacy or publicity rights of any other person, including, without limitation, posting any personal identifying information of another individual, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers, credit card numbers or any trade secrets or information for which you have any obligation of confidentiality;
- Post statements or materials that misrepresent your affiliation with any entity;
- Post statements or materials that constitute junk mail, spam or unauthorized advertising or promotional materials;
- Post material that in the sole judgment of MedPage Today, LLC is objectionable or restricts or inhibits any person or entity from using or enjoying any interactive features or other portions of the Site, or which may expose MedPage Today, LLC or its users to harm or liability of any nature; or
- Post material that infringes, or that may infringe, any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party, or that you otherwise do not have the right to make available, without the express permission of the owner of the copyright, trademark or other proprietary right. MedPage Today, LLC does not have any responsibility to provide any user with indications, markings or anything else that may aid any user in determining whether the material in question is copyrighted or trademarked. Users shall be solely liable for any damage resulting for infringements of copyrights, trademarks, proprietary rights or any other harm resulting from their submission.
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under the U.S. copyright law. If you believe in good faith that materials hosted on the Site or Services infringe your copyright, you or your agent may send to MedPage Today, LLC a notice requesting that the material be removed or access to it be blocked. Any notification by a copyright owner or a person authorized to act on its behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon MedPage Today, LLC actual knowledge of facts or circumstances from which infringing material or acts are evident. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. All notices and counter notices must meet the then current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright for details. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our Copyright Agent the following information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- Identification of the copyrighted work that you claim has been infringed;
- Identification of where the material that you claim is infringing is located on the Site or Service reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact you, such as your address, telephone number and, if available, your email address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Our Copyright Agent for notice of claims of copyright infringement or counter notices can be reached as follows: Designated Agent: Alan Shapiro; Address of Agent: 114 5th Avenue, 15th Floor, New York, NY 10011; Telephone: (646) 728-9500; Fax: (646) 728-9501; E-mail for notice: DMCA@everydayhealthinc.com. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.
THE SITE AND THE SERVICES, AND ANY CONTENT, TOOLS, PRODUCTS OR SERVICES DISPLAYED, ACCESSED OR OBTAINED ON OR THROUGH THE SITE AND SERVICES ARE PROVIDED "AS IS", "AS AVAILABLE" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MEDPAGE TODAY, LLC, ITS LICENSORS AND THEIR PARENT COMPANIES, AFFILIATES, SUPPLIERS AND AGENTS DO NOT WARRANT AND EXPRESSLY DISCLAIM THAT: (i) YOUR USE OF THE SITE AND/OR SERVICES AND ACCESS TO AND USE OF ALL OF THE TOOLS AND FEATURES THEREON WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE; (ii) THAT ANY INFORMATION OBTAINED THEREIN IS ACCURATE, RELIABLE OR COMPLETE; (iii) THAT DEFECTS WILL BE CORRECTED; OR (iv) THAT ANY SOFTWARE, SERVICES, SITES OR SERVER(S) ON WHICH THE SITE OR SERVICES ARE HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE SITES AND SERVICES AND ANY INFORMATION OR MATERIALS PROVIDED ON OR THROUGH THE SITE AND SERVICES ARE ENTIRELY AT YOUR OWN RISK. WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE PRODUCTS OR SERVICES ADVERTISED ON THE SITE OR SERVICES OR ABOUT THE SATISFACTION OF GOVERNMENT REGULATIONS REQUIRING DISCLOSURE OF INFORMATION ON PRESCRIPTION DRUG PRODUCTS WITH REGARD TO THE CONTENT CONTAINED ON THE SITE OR SERVICES. WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY TREATMENT, ACTION OR APPLICATION OF MEDICINE, MEDICATION OR THE INFORMATION OFFERED OR PROVIDED WITHIN OR THROUGH THE SITE OR SERVICES.
Limitation on Liability; Limited Remedies
NEITHER MEDPAGE TODAY, LLC NOR ITS PARENT COMPANY, AFFILIATES, LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS OR SPONSORS ARE RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR INJURY OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO (i) THE USE OF OR INABILITY TO USE THE SITE AND/OR SERVICES; (ii) ANY CONTENT CONTAINED ON THE SITE AND/OR SERVICES; (iii) STATEMENTS OR CONDUCT POSTED OR MADE PUBLICLY AVAILABLE ON THE SITE AND/OR SERVICES; (iv) ANY ACTION TAKEN IN RESPONSE TO OR AS A RESULT OF ANY INFORMATION AVAILABLE ON THE SITE AND/OR SERVICES; (vi) ANY DAMAGE CAUSED BY LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF ANY CONTENT ON THE SITE AND/OR SERVICES; OR (vii) ANY OTHER MATTER RELATING TO THE SITE AND/OR SERVICES.
MedPage Today, LLC is not affiliated or associated with sponsors of sites which hyperlink to or from the Site or Services. The linked sites are not under the control of MedPage Today, LLC and we are not responsible for the content of any linked site or any link contained in a linked site. We reserve the right to terminate any link or linking program at any time. We may provide links from the Site or Services to other sites as a convenience to you and in no way should this be interpreted as an endorsement of any company, content or products. If you decide to access any of the third party sites linked to the Site or Services, you do this entirely at your own risk.
You agree that we may, in our sole discretion, terminate your password, account (in whole or in part) or use of the Site or Services, and remove and discard any content within the Site or Services, at any time and for any reason. You agree that any actions taken under this Section may be effective without prior notice to you.
We make no representation or warranty that the content and materials on the Site or Services are appropriate or available for use in locations outside the United States. Those who choose to access the Sites or use the Services from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent applicable. We reserve the right, at any time in our sole discretion, to limit the availability and accessibility of the Sites or Services to any person, geographic area or jurisdiction we so desire, and to limit the quantities of any such service or products that we provide.
Governing Law These Terms and Conditions are governed by the internal substantive laws of the State of New York, without respect to its conflict of laws or choice of laws principles.
You expressly and irrevocably agree that exclusive jurisdiction for any dispute in any way relating to your use of the Site or Services shall be in the courts located in New York, New York and you further agree and expressly consent to the exercise of personal jurisdiction in such courts in connection with any such dispute including any claim involving MedPage Today, LLC or its parent corporation, affiliates, subsidiaries, employees, contractors, officers, directors and content providers.
Successors and Assigns
We may exercise any of our rights under these terms through one or more of our corporate affiliates (including any entity that directly or indirectly controls, is controlled by or is under common control with us). If our assets are acquired by another entity, that entity will assume our rights and obligations as described in these terms. You may not assign your rights or obligations under these terms, by operation of law or otherwise, without our prior written consent.
In the unlikely event that you're not satisfied with customer service's solution, and you and Everyday Health are unable to resolve a dispute through the Informal Dispute Resolution Procedures below, we each agree to resolve the dispute through binding arbitration or small claims court instead of in courts of general jurisdiction.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Unless expressly limited by this arbitration provision, arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. In arbitration you may be entitled to recover attorneys' fees from us to the same extent as you would be in court.
(1) Claims Subject to Arbitration: To the fullest extent permitted by applicable law, Everyday Health and you agree to arbitrate all disputes and claims between us, except for claims arising from bodily injury or that pertain to enforcing, protecting, or the validity of your or our intellectual property rights (or the intellectual property rights of any of our licensors, affiliates and partners). This Arbitration Agreement is intended to be broadly interpreted. It includes, but is not limited to:
- claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, fraud, misrepresentation or any other statutory or common-law legal theory;
- claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);
- claims for mental or emotional distress or injury not arising out of physical bodily injury;
- claims that are currently the subject of purported class action litigation in which you are not a current member of a certified class; and
- claims that may arise after the termination of this Agreement.
References to "Everyday Health," "you," "we" and "us" in this Arbitration Agreement include our respective predecessors in interest, successors, and assigns, as well as our respective past, present, and future parents, subsidiaries and affiliates (including Ziff Davis, Inc., Ziff Davis, LLC, Everyday Health, Inc., Everyday Health Media, LLC, and their affiliates); those entities and our respective agents, employees, licensees, licensors, and providers of content as of the time your or our claim arises; and all authorized or unauthorized users or beneficiaries of Services under this or prior Agreements between us. Notwithstanding the foregoing, either party may elect to have claims heard in small claims court seeking only individualized relief, so long as the action is not removed or appealed to a court of general jurisdiction. This Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies. You agree that, by entering into this Agreement, you and we are each waiving the right to participate in a class action and to a trial by jury to the fullest extent permitted by applicable law. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (9 U.S.C. §§ 1-16) governs the interpretation and enforcement of this arbitration provision. This Arbitration Agreement shall survive termination of this Agreement.
(2) Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures: You and we agree that good-faith, informal efforts to resolve disputes often can result in a prompt, cost-effective and mutually beneficial outcome. Therefore, a party who intends to initiate arbitration or file a claim in small claims court must first send to the other a written Notice of Dispute ("Notice"). A Notice from you to Everyday Health must be emailed to email@example.com ("Notice Address").
Any Notice must include (i) the claimant's name, address, and email address; (ii) a description of the nature and basis of the claim or dispute; (iii) if you are submitting the Notice, any relevant facts regarding your use of the Sites, including whether you have created an account with or receive any newsletters associated with any of the Sites; (iv) a description of the nature and basis of the specific relief sought, including the damages sought, if any, and a detailed calculation for them; and (v) a personally signed statement from the claimant (and not their counsel) verifying the accuracy of the contents of the Notice. The Notice must be individualized, meaning it can concern only your dispute and no other person's dispute.
After receipt of a completed Notice, the parties shall engage in a good faith effort to resolve the dispute for a period of 60 days (which can be extended by agreement). You and we agree that, after receipt of the completed Notice, the recipient may request an individualized video settlement conference (which can be held after the 60-day period) and both parties will personally attend (with counsel, if represented). If you are unable to participate in the settlement conference by video, you may attend telephonically upon showing of good cause or extraordinary circumstances warranting telephonic participation (e.g., inability to afford equipment or sufficient Wi-Fi due to indigent circumstances). You and we agree that the parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually convenient time and to seek to reach a resolution. If we and you do not reach an agreement to resolve the issues identified in the Notice within 60 days after the completed Notice is received (or a longer time if agreed to by the parties), you or we may commence an arbitration proceeding or a small claims court proceeding (if permitted by small claims court rules).
Compliance with this Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures section is a condition precedent to initiating arbitration. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution procedures set forth in this Section 23(2). All of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are essential so that you and Everyday Health have a meaningful opportunity to resolve disputes informally. If any aspect of these requirements has not been met, a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by law, the arbitration administrator may not accept, administer, assess, or demand fees in connection with an arbitration that has been initiated without completion of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures. If the arbitration is already pending, it shall be administratively closed. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with these Procedures in arbitration.
(3) Arbitration Procedure: The arbitration will be governed by applicable rules of National Arbitration & Mediation ("NAM") (including the Comprehensive Dispute Resolution Rules and Procedures and/or the Supplemental Rules for Mass Arbitration Filings, as applicable) ("NAM Rules"), as modified by this Arbitration Agreement, and will be administered by NAM. (If NAM is unavailable or unwilling to do so, another arbitration provider shall be selected by the parties that will do so, or if the parties are unable to agree on an alternative administrator, by the court pursuant to 9 U.S.C. §5.) The NAM Rules are available online at www.namadr.com, by calling NAM at 1-800-358-2550, or by requesting them in writing at the Notice Address. You may obtain a form to initiate arbitration at: https://www.namadr.com/content/uploads/2020/09/Comprehensive-Demand-for-Arb-revised-9.18.19.pdf or by contacting NAM.
You and we agree that the party initiating arbitration must submit a certification that they have complied with and completed the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures requirements referenced in Section 23(2) and that they are a party to the Arbitration Agreement enclosed with or attached to the demand for arbitration. The demand for arbitration and certification must be personally signed by the party initiating arbitration (and their counsel, if represented).
All issues are for the arbitrator to decide, except as otherwise expressly provided herein. The arbitrator may consider but shall not be bound by rulings in other arbitrations involving different customers.
Unless we and you agree otherwise, or the applicable NAM Rules dictate otherwise, any arbitration hearings will take place in the county (or parish) of your billing address and you and a Everyday Health representative will be required to attend in person. At the conclusion of the arbitration proceeding, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator's decision is binding only between you and Everyday Health and will not have any preclusive effect in another arbitration or proceeding that involves a different party. An arbitrator's award that has been fully satisfied shall not be entered in any court.
As in court, you and Everyday Health agree that any counsel representing a party in arbitration certifies when initiating and proceeding in arbitration that they are complying with the requirements of Federal Rule of Civil Procedure 11(b), including certification that the claim or relief sought is neither frivolous nor brought for an improper purpose.
The arbitrator is authorized to impose any sanctions under the NAM Rules, Federal Rule of Civil Procedure 11, or applicable federal or state law, against all appropriate represented parties and counsel.
Except as expressly provided in the Arbitration Agreement, the arbitrator may grant any remedy, relief, or outcome that the parties could have received in court, including awards of attorneys' fees and costs, in accordance with applicable law. Unless otherwise provided by applicable law, the parties shall bear their own attorneys' fees and costs in arbitration unless the arbitrator awards sanctions or finds that either the substance of the claim, the defense, or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11 (b)).
(4) Arbitration Fees: The payment of arbitration fees (the fees imposed by the arbitration administrator including filing, arbitrator, and hearing fees) will be governed by the applicable NAM Rules, unless you qualify for a fee waiver under applicable law. If after exhausting any potentially available fee waivers, the arbitrator finds that the arbitration fees will be prohibitive for you as compared to litigation, we will pay as much of your filing, arbitrator, and hearing fees in the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the arbitration, unless the arbitrator determines that your claim(s) were frivolous or brought for an improper purpose or asserted in bad faith. You and we agree that arbitration should be cost-effective for all parties and that any party may engage with NAM to address the reduction or deferral of fees.
(5) Confidentiality: Upon either party's request, the arbitrator will issue an order requiring that confidential information of either party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award and that any permitted court filing of confidential information must be done under seal to the furthest extent permitted by law.
(6) Offer of Settlement: In any arbitration between you and Everyday Health, the defending party may, but is not obligated to, make a written settlement offer at any time before the evidentiary hearing or, if a dispositive motion is permitted, prior to the dispositive motion being granted. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the claim. If the award is issued in the other party's favor and is less than the defending party's settlement offer or if the award is in the defending party's favor, the other party must pay the defending party's costs incurred after the offer was made, including any attorney's fees. If any applicable statute or case law prohibits the shifting of costs incurred in the arbitration, then the offer in this provision shall serve to cease the accumulation of any costs to which the party bringing the claim may be entitled for the cause of action under which it is suing.
(7) Requirement of Individualized Relief: 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. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of a representative, class, or private attorney general proceeding. If, after exhaustion of all appeals, any of these prohibitions on non-individualized declaratory or injunctive relief; class, representative, and private attorney general claims; and consolidation are found to be unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief sought with respect to a particular claim), then the parties agree such a claim or request for relief shall be decided by a court of competent jurisdiction, after all other arbitrable claims and requests for relief are arbitrated. You agree that any arbitrations between you and Everyday Health will be subject to this Section 23 and not to any prior arbitration agreement you had with Everyday Health, and, notwithstanding any provision in this Agreement to the contrary, you agree that this Section 23 amends any prior arbitration agreement you had with Everyday Health, including with respect to claims that arose before this or any prior arbitration agreement.
(8) Opt Out of Future Changes: Notwithstanding any provision to the contrary, if Everyday Health makes any future change to this Arbitration Agreement (other than a change to the Notice Address), you may reject any such change by sending Everyday Health an email to firstname.lastname@example.org within 30 days of the posting of the amended arbitration agreement that provides: (i) your full legal name, (ii) your complete mailing address, (iii) your phone number, (iv) if applicable, the username or email address associated with any potential account or newsletter; (v) the relevant Site; and (vi) the approximate date of your initial use of the relevant Site. Such an opt-out email must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. It must include a statement, personally signed by you, that you wish to reject the change to the Arbitration Agreement. This is not an opt out of arbitration altogether.(9) Mass Filing:
If, at any time, 25 or more claimants (including you) submit Notices or seek to file demands for arbitration raising similar claims against the other party or related parties by the same or coordinated counsel or entities, consistent with the definition and criteria of Mass Filings ("Mass Filing") set forth in NAM's Mass Filing Supplemental Dispute Resolution Rules and Procedures ("NAM's Mass Filing Rules," available at https://www.namadr.com/resources/rules-fees-forms/), you and we agree that the additional procedures set forth below shall apply. The parties agree that throughout this process, their counsel shall meet and confer to discuss modifications to these procedures based on the particular needs of the Mass Filing. The parties acknowledge and agree that by electing to participate in a Mass Filing, the adjudication of their dispute might be delayed. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled beginning when the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are initiated, so long as the pre-arbitration Notice complies with the requirements in Section 23(2), until your claim is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration.
Stage One: Counsel for the claimants and counsel for Everyday Health shall each select 25 claims per side (50 claims total) to be filed and to proceed in individual arbitrations as part of a staged process. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this initial set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and Everyday Health shall pay the mediator's fee.
Stage Two: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for Everyday Health shall each select 50 claims per side (100 claims total) to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agreed to in writing. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this second set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and Everyday Health shall pay the mediator's fee.
Stage Three: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for Everyday Health shall each select 100 claims per side (200 claims total) to be filed and to proceed in individual arbitrations as part of a third staged process, subject to any procedural changes the parties agreed to in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. Following this third set of staged proceedings, counsel for claimants may elect to have the parties participate in a global mediation session of all remaining claims with a retired federal or state court judge.
Stage Four: If your claim is not resolved at this time, then you agree that your claim will be resolved as part of continuing, staged individual arbitration proceedings as set forth below. Assuming the number of remaining claims exceeds 100, then 100 claims shall be randomly selected (or selected through a process agreed to by counsel for the parties) to be filed and to proceed in individual arbitrations as part of a staged process. If the number of remaining claims is fewer than 100, then all of those claims shall be filed and proceed in individual arbitrations. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After each set of 100 claims are adjudicated, settled, withdrawn, or otherwise resolved, this process shall repeat consistent with these parameters. Counsel for the parties are encouraged to meet and confer, participate in mediation, and engage with each other and with NAM (including through a Procedural Arbitrator) to explore ways to streamline the adjudication of claims, increase the number of claims to proceed at any given time, promote efficiencies, conserve resources, and resolve the remaining claims.
A court of competent jurisdiction shall have the authority to enforce these Mass Filing provisions and, if necessary, to enjoin the mass filing, prosecution, or administration of arbitrations and the assessment of arbitration fees. If these additional procedures apply to your claim, and a court of competent jurisdiction determines that they are not enforceable as to your claim, then your claim shall proceed in a court of competent jurisdiction consistent with this Agreement.
You and Everyday Health agree that we each value the integrity and efficiency of arbitration and wish to employ the process for the fair resolution of genuine and sincere disputes between us. You and Everyday Health acknowledge and agree to act in good faith to ensure the processes set forth herein are followed. The parties further agree that application of these Mass Filing procedures have been reasonably designed to result in an efficient and fair adjudication of such cases.
(10) Severability: If any portion of this Arbitration Agreement is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision, or portion thereof, that matches the intent of the original provision, or portion thereof, as closely as possible. The remainder of this Arbitration Agreement shall continue to be enforceable and valid according to the terms contained herein.
CLASS ACTION AND JURY TRIAL WAIVER
You and Everyday Health agree that, to the fullest extent permitted by law, each party may bring claims (whether in court or in arbitration) against the other only in an individual capacity, and not participate as a plaintiff, claimant, or class member in any class, collective, consolidated, private attorney general, or representative proceeding. This means that you and Everyday Health may not bring a claim on behalf of a class or group and may not bring a claim on behalf of any other person unless doing so as a parent, guardian, or ward of a minor or in another similar capacity for an individual who cannot otherwise bring their own individual claim. This also means that you and Everyday Health may not participate in any class, collective, consolidated, private attorney general, or representative proceeding brought by any third party. Notwithstanding the foregoing, you or Everyday Health may participate in a class-wide settlement. To the fullest extent permitted by law, you and Everyday Health waive any right to a jury trial.
Limitation Period for Claims
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of our sites or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.