Terms & Conditions

For Providers & Clinicians.

LAST UPDATED: April 30, 2020

 

YOU AND MATCHWELL, LLC, A NORTH CAROLINA LIMITED LIABILITY COMPANY (“MATCHWELL”, “WE”, “US”, AND “OUR”) AGREE THAT YOUR ACCESS TO AND USE OF THE WEB APPLICATION AT THE WEB SITE LOCATED AT WWW.WEMATCHWELL.COM, AND ANY MOBILE APPLICATIONS (INCLUDING MOBILE OPTIMIZED WEB APPLICATIONS) PROVIDED BY US IN THE FUTURE, IS SUBJECT TO YOUR AGREEMENT TO THESE TERMS OF SERVICE. TO MAKE THESE TERMS OF SERVICE EASIER TO READ, THE FOREGOING REFERENCED WEB SITE, WEB APPLICATION AND ANY MOBILE APPLICATIONS ARE REFERRED TO COLLECTIVELY AS THE “MATCHWELL PLATFORM.” YOUR USE OF THE MATCHWELL PLATFORM IS SUBJECT TO YOUR AGREEMENT TO THESE TERMS OF SERVICE, WHICH WILL BECOME A BINDING AGREEMENT BETWEEN YOU AND US (THE “AGREEMENT”). WE ARE WILLING TO ALLOW YOU ACCESS TO THE MATCHWELL PLATFORM ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT. PLEASE READ THESE TERMS CAREFULLY. AFTER READING THE TERMS, IF YOU AGREE TO THE TERMS OF SERVICE, PLEASE INDICATE YOUR DECISION BY CLICKING THE CHECKBOX ON THE ACCOUNT SIGN UP/REGISTRATION FORM NEXT TO THE STATEMENT THAT READS “I have read and agreed to the Terms of Service.” IF YOU DO NOT AGREE, YOU WILL NOT BE ABLE TO ESTABLISH AN ACCOUNT AND USE THE MATCHWELL PLATFORM. IN ALL CASES, BY ACCESSING, REGISTERING AS A USER, VIEWING OR USING OUR WEB SITE, YOU AGREE TO THE TERMS OF SERVICE.

 

The Matchwell Platform is available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, you must be at least 18 years of age and legally authorized to work in the United States to use the Matchwell Platform. If you do not qualify, then you are not permitted to use the Matchwell Platform. You must complete a sign-up form in order to use the Matchwell Platform. You may have one Account (as defined below) to use the Matchwell Platform. We reserve the right to refuse registration of, or cancel, Accounts at any time and for any reason, as we deem appropriate.

 

The Matchwell Platform is owned and operated by Matchwell. The Matchwell Platform provides a marketplace where credentialed healthcare professionals seeking to render services in their area of specialization are matched to healthcare organizations and facilities (“Customers”) seeking to engage these professionals to perform clinical services on their behalf.

 

This Agreement is a binding contract between you and Matchwell. By using the Matchwell Platform, you acknowledge that you have read, agreed to, and accepted all of the terms and conditions contained in this Agreement.

  1. ACKNOWLEDGMENT AND ACCEPTANCE OF AGREEMENT. You agree that your establishment of an account with Matchwell and your use of the Matchwell Platform constitutes the acceptance of and agreement to all terms of this Agreement.
  2. USE OF THE MATCHWELL PLATFORM. To be able to use the Matchwell Platform and submit Engagement Requests (defined in section 10), you must create an account with Matchwell (“Account”) by (1) entering the required identifiers, including, but not limited to, your first and last name and your email address; (2) creating a professional profile including but not limited to your work preferences, credentials, certifications, résumé, employment history, and other information required to complete employment-related checks; (3) creating a username and password. You may suspend your Account at any time by contacting Matchwell. By registering with Matchwell, you understand that we may send you communications or data (by text, email, telephone or other methods) regarding Matchwell or the Matchwell Platform, including but not limited to: (a) notices about your use of the Matchwell Platform, including any notices concerning violations of use; (b) updates; and (c) promotional information and materials regarding Matchwell’s products and services. Matchwell will give you the opportunity to opt-out of receiving promotional electronic mail from Matchwell by following applicable opt-out instructions.

In consideration of the use of the Matchwell Platform, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the registration form, and (b) maintain and promptly update the personal information you provide to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to immediately terminate your access to the Matchwell Platform.

 

You are responsible for maintaining the confidentiality and security of your Account and password, and you are fully responsible for all activities that occur under your password or Account, and for any other actions taken in connection with the Account or password. You agree to (a) immediately notify us of any known or suspected unauthorized use(s) of your password or Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your password; and (b) ensure that you exit from your Account at the end of each session. We will not be liable for any injury, loss or damage of any kind arising from or relating to your failure to comply with the above clauses (a) and (b) or for any acts or omissions by you or someone else using your Account and/or password.

  1. TERM AND TERMINATION. This Agreement shall remain in effect as long as you have an Account with Matchwell. Both you and Matchwell may terminate your Account at any time.
  2. CREDENTIALING. Matchwell may obtain information about you from a third-party consumer reporting agency. You may be the subject of a “consumer report” and/or “investigative consumer report” which may include information about your character, general reputation, personal characteristics, and/or mode of living, and which can involve personal interviews with sources such as your neighbors, friends, or associates. These reports may contain information regarding your criminal history, references, address history, right to work, lawsuits, credit history, social security verification, motor vehicle records, verification of your education or employment history, or other background checks and any other information with public or private information sources. Matchwell carries out all checks as required per industry regulatory standards. You have the right, upon written request made within a reasonable time, to request whether a consumer report has been run about you, and disclosure of the nature and scope of any investigative consumer report and to request a copy of your report. Please be advised that the nature and scope of the most common form of investigative consumer report is licensure verification and employment history. As part of your initial registration with Matchwell, you agree to sign an authorization consent to a background check. These searches may be conducted on behalf of Matchwell by a third party. The scope of this disclosure is all-encompassing, allowing Matchwell to obtain from any outside organization all manner of consumer reports while you continue to use the Matchwell Platform and to the extent permitted by law.

 

By using the Matchwell Platform you authorize Matchwell (or a third party retained by Matchwell) and Customers to verify your credentials, including but not limited to your professional licenses, certifications, disciplinary history, and other items using primary verification sources. It is your responsibility to maintain your licenses and certifications for continued use of the Matchwell Platform.

Subject to a satisfactory background checks and credentials verification, you will be eligible to use the Matchwell Platform to view and submit Engagement Requests. If there is a problem with your background check, you cannot use the Matchwell Platform until the problem has been resolved. You have the right to dispute the accuracy or completeness of any information contained in the report.

Matchwell may receive information from Customers on your job performance and may use that information for any lawful purpose.

 

You agree to have your information published and made available to Customers. Your contact information will be made available to any Customer with which you are matched.

  1. EMPLOYMENT/INDEPENDENT CONTRACTOR. As a user of the Matchwell Platform you acknowledge that you are not an employee of Matchwell. You will be an employee of either the Customer or a third-party employer, currently People2.0, (the “Third Party Employer”) (the Customer and the Third Party Employer may be collectively referred to as the “Employer”). The Employer will be responsible for all payroll activities and other employer obligations under this Agreement. Matchwell reserves the right to change who will act as the Third Party Employer.

You are not entitled to or eligible for any benefits that Matchwell may make available to its employees, such as group insurance, profit-sharing or retirement benefits. You agree that you have no claim under this Agreement or otherwise against Matchwell for vacation pay, sick leave, retirement benefits, social security, workers compensation, health, disability, or unemployment insurance benefits or other employee benefits of any kind.

 

You may be eligible to participate in the Employer’s benefits only to the extent that you are eligible, as established by the Employer in its sole discretion. The applicable Employer will withhold applicable payroll taxes and make required payments for social security, Medicare, unemployment and other applicable payments on your behalf.

 

You acknowledge and agree that Matchwell merely provides the platform for clinicians such as yourself and Customers to communicate and share information. You acknowledge and agree that the contract terms, pay rate, work hours, service dates, and working conditions will be established by the Customer and not by Matchwell. You acknowledge and agree that Matchwell does not, in any way, supervise, direct, or control Customers or clinicians such as you. Matchwell does not set your contract terms, fees, rates, work hours, work schedules, or locations of work. Matchwell does not provide you with training or any equipment, labor, or materials needed for a particular Engagement; Customers and/or the Third Party Employer will provide all required training.

  1. FEES AND COMPENSATION. There is no cost for you to use the Matchwell Platform. The compensation you will receive for providing services under an Engagement are determined by the Customer and not Matchwell. You have the control to set your own compensation preferences in the Matchwell Platform, and your Compensation is based on what you and the Customer agree upon pursuant to the Engagement. The Employer will be solely responsible for paying any compensation owed to you.
  2. INSURANCE. The applicable Employer will provide for and carry professional liability insurance, insuring you for professional errors, omissions, negligence, incompetence and malfeasance with limits of liability meeting or exceeding the amounts required by any Customer. Matchwell will not provide any professional liability insurance or any other type of insurance on your behalf.
  3. YOUR OBLIGATIONS AND REPRESENTATIONS. You confirm that all information provided to Matchwell and each Customer is true to the best of your knowledge. You acknowledge that any licenses or certifications you hold are in good standing and are active and unrestricted to practice in the state in which you would be working. You acknowledge that you have never been charged with or convicted of (i) any felony or (ii) a misdemeanor involving controlled substances, fraud, the delivery or payment of healthcare services or moral turpitude.

You represent and warrant that you have used your actual name and identifiers and have not used any aliases to misrepresent your actual identity. You represent and warrant that you have the full right, power, and authority to enter into and perform this Agreement without the consent of any third party (including any of your current or former employers).

 

You represent and warrant that you are not subject to any contract or duty that would be breached by entering into or performing your obligations under this Agreement, or any Engagement, or that is otherwise inconsistent with this Agreement or any Engagement.

 

You represent and warrant that you hold and will maintain in good standing all federal, state, and local licenses and certifications as required by law.

 

You will fully conform to the specifications, requirements, and other terms in any applicable accepted Engagement and this Agreement.

 

You will provide Matchwell with information requested by Matchwell from time to time regarding your credentials, including, but not limited to your licensure, certification, and insurance, and you will comply with Matchwell’s and any applicable Customer’s credentialing standards and requirements. You will notify Matchwell immediately of any allegation, action, claim, change, modification, disciplinary action or any other event that would, if resolved against you, affect the validity, active status or impair in any manner your underlying license(s) or certification(s). You will notify Matchwell through the Matchwell Platform of any change in name, address, state, or licensure.

  1. MATCHWELL PLATFORM. The Matchwell Platform provides a marketplace where credentialed healthcare professionals seeking to render services in their area of specialization are matched to Customers seeking to engage these professionals to perform clinical services on their behalf. We are not responsible for the conduct, whether online or offline, of any user of the Matchwell Platform. We may make changes to the Matchwell Platform at any time without notice to you. The Matchwell Platform may be temporarily unavailable from time to time for various reasons. We assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, the Matchwell Platform. We are not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment or software, or the failure of email on account of technical problems or traffic congestion on the Internet or at any web site, including injury or damage to any person’s computer related to or resulting from participating or downloading materials or Submission in connection with the Matchwell Platform. THE MATCHWELL PLATFORM IS PROVIDED “AS-IS” AND WE DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE MATCHWELL PLATFORM.
  2. ENGAGEMENTS. The Matchwell Platform enables you to specify Customers with which you would like to provide clinical services for which you are licensed and qualified. You authorize Matchwell to use the Matchwell Platform to match you with a Customer and their open shifts and/or positions based on your location and/or desired location, desired rate of pay, desired setting, user preferences, experience and professional license and certifications (collectively, an “Engagement Request”). You will be notified of a potential match with a Customer (an “Engagement”), and you may choose to accept the Engagement in your sole discretion through the Matchwell Platform. You are under no obligation to accept an Engagement.

After accepting an Engagement, you agree to make all reasonable efforts to be on time and successfully complete the entire agreed-upon Engagement. Failure to comply fully with rules and regulations may result in your removal by Matchwell as a participant/user of the Matchwell Platform. You may cancel accepted Engagements through the Matchwell Platform, but in the event you must cancel an accepted Engagement, you must provide Matchwell and the Customer with at least 12 hours’ notice prior to your assigned Engagement. Tardiness or failure to show up for accepted Engagements may result in your removal by Matchwell as a participant of the Matchwell Platform.

 

You agree to uphold all applicable standards of care and follow policies and procedures of the Customer where you will be providing clinical services. You will not accept Engagements that would put you or any Customer’s patients at risk, such as being overworked or fatigued. You agree that you will not work more than forty (40) hours per week from Engagements made on the Matchwell Platform. You agree to work within the scope of your licensure and practice according to state and federal laws. You will provide clinical services to a Customer (i) faithfully, diligently and to the best of your abilities, (ii) in a manner consistent with currently approved methods and practices customarily observed by similarly licensed providers within the community and (iii) in accordance with the standards of professional ethics and practice as may from time to time be applicable during the term of this Agreement.

 

You understand and agree that Matchwell cannot guarantee that you will receive a minimum number of or any Engagements. The matching process and establishment of Engagements are determined by you and the Customers.

 

You will complete patient notes and medical records in a manner required by the applicable Customer. All medical records, files, papers, documents, and clinical materials generated in connection with your clinical services shall be the property of the applicable Customer.

We may interface or integrate with third parties’ products and services, such as those offered by Google. Your use of those services will be subject to the terms of use applicable to those products or services.  Google’s terms of use are available at: https://policies.google.com/terms?hl=en.

  1. SUBSEQUENT EMPLOYMENT BY CUSTOMER. Matchwell will not restrict your ability to be hired by any Customer, but you are obligated to inform Matchwell of any Customer that demonstrates any intent to hire you outside of the Matchwell Platform. For the purposes of this Agreement, “hire” shall include a full-time hire, part-time hire, independent contractor hire, intern hire, or any other such engagement where you receive any compensation from Customer.
  2. CONFIDENTIALITY. In the course of performing the services under this Agreement, you may receive, develop, be exposed to, or acquire Confidential Information of Matchwell, which shall include but is not limited to all information, data, reports, records, summaries, tables, studies, fund raising and marketing information, information that is confidential by its nature, whether such Confidential Information is written or oral, fixed in hard copy or contained in any computer data base or computer readable form, as well as any identified as confidential or proprietary by Matchwell (“Confidential Information”). You shall maintain the confidentiality of the Confidential Information and shall not disclose or permit the disclosure of such Confidential Information to any third party.

Nothing set forth herein shall operate to prohibit or prevent you from disclosing Confidential Information pursuant to any judicial or governmental order, legal requirement or court order, provided that you take reasonable steps to provide Matchwell with sufficient prior written notice in order to allow Matchwell to contest such request, requirement, or court order.

 

You acknowledge that in the course of providing services to Customers, you will be exposed to the Customer’s protected health information (“PHI”), as that term is defined in the Standards for Privacy of Individually Identifiable Health Information (the “Privacy Regulation”) under the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. § 1320d et seq., as amended from time to time, including the amendments made by Subtitle D of the Heath Information Technology for Economic and Clinical Health Act provisions of the American Recovery and Reinvestment Act of 2009 (“HITECH Act”) and any current and future regulations promulgated thereunder (collectively, “HIPAA”). You recognize the confidentiality of all PHI, and you will use appropriate safeguards to prevent the use or disclosure of PHI except as permitted by law. You will fully comply with the Privacy Regulation and HIPAA, as applicable to your performance of your obligations under this Agreement and any Engagement.

 

We may use all Account registration information, subject to compliance with our Privacy Policy that can be found here (the “Privacy Policy”). This Agreement includes terms and conditions set forth in the Privacy Policy, and the Privacy Policy is incorporated herein by reference. By indicating your agreement to this Agreement, you are consenting to have your personal data used by us as set forth in the Privacy Policy.

 

  1. INDEMNIFICATION AND HOLD HARMLESS PROVISION. You shall defend, indemnify and hold harmless Matchwell and its managers, members, officers, contractors, employees and agents from and against any and all claims, actions, liabilities, losses, costs and expenses of any nature whatsoever, including reasonable attorneys’ fees, resulting from: a) the provision of your clinical services, b) breach of any representation or warranty in this Agreement, or 3) your fraud, gross negligence or intentional or willful misconduct, or on account of any of your obligations, liabilities or debts.
  2. LIMITATION OF LIABILITY. EXCEPT FOR CLAIMS RELATING TO (I) YOUR BREACH OF THIS AGREEMENT; (II) YOUR INDEMNIFICATION OBLIGATIONS; (III) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (IV) A PARTY’S VIOLATION OF ANY APPLICABLE LAW, RULE OR REGULATION, (A) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, OR LOSS OF GOOD WILL) ARISING UNDER OR IN CONNECTION WITH A BREACH OR ALLEGED BREACH OF THIS AGREEMENT, EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) THE MAXIMUM LIABILITY OF MATCHWELL SHALL NOT EXCEED THE AMOUNT RECEIVED BY YOU FOR SERVICES PROVIDED TO A CUSTOMER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INITIAL CLAIM. THESE LIMITATIONS SHALL APPLY EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  3. NON-DISCRIMINATION. Matchwell does not discriminate against any candidate, applicant, employee, or independent contractor on the basis of race, color, religion, sex, national origin, age, creed, ancestry, veteran or military status, disability unrelated to the essential functions of an engagement, or any other basis prohibited by federal, state, or local law. You agree, in accordance with the provisions and intent of this Agreement, not to differentiate or discriminate in treatment of patients because of race, color, national origin, ancestry, religion, sex, marital status, sexual orientation, age, health status or health insurance. Further, you shall render appropriate services to assigned patients in the same manner, in accordance with the same standards and within the same time availability as offered to your other patients.
  4. NON-ASSIGNABILITY. You and Matchwell agree that neither the rights nor the duties as prescribed herein may be assigned by you without the expressed written consent of Matchwell.
  5. SURVIVAL. Sections 5, 11, 12, 13, 14, 23, and 24 will survive the expiration or earlier termination of the Agreement.
  6. NON-WAIVER. No waiver of any term or condition of this Agreement by either party shall be deemed a continuing or further waiver of the same term or condition or a waiver of any other term or condition of this Agreement.
  7. SEVERABILITY. In the event that any portion of this Agreement shall be determined to be invalid or unenforceable, the remainder of this Agreement shall be deemed to continue to be binding upon the parties hereto in the same manner as if the invalid or unenforceable provision were not a part of this Agreement.
  8. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement between you and us pertaining to your use of the Matchwell Platform. We reserve the right, at our sole discretion, to change, modify, add, or delete portions of this Agreement at any time without further notice. If we do this, we will post the changes to this Agreement on this page and will indicate at the top of this page the new effective date (e.,the LAST UPDATED date). Your continued use of the Matchwell Platform after any such changes constitutes your acceptance of the revised Agreement. If you do not agree to abide by this Agreement or any future revised Agreement, do not use or access the Matchwell Platform. It is your responsibility to regularly review this Agreement.
  9. GOVERNING LAW. This Agreement shall be governed by, and construed in accordance with, the laws of the State of North Carolina, without regard to conflict of law provisions and shall constitute the entire Agreement between the parties.
  10. INTELLECTUAL PROPERTY RIGHTS. Matchwell grants you a limited license to access and, if you have created an Account on the Matchwell Platform, to use the Matchwell Platform. You must not access (or attempt to access) the Matchwell Platform by any means other than the interface provided, and you will not use information from the Matchwell Platform for any purposes other than the purposes for which it was made available. You agree not to use the Matchwell Platform for offering any goods or services other than those you are contracted by the Customer. You must not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any content of the Matchwell Platform in any way for any public or commercial purpose without Matchwell’s prior written consent. You must not use any content of the Matchwell Platform on any other website or in a networked computer environment for any purpose except your own viewing without Matchwell’s prior written consent. You must not frame or link to the Matchwell Platform except as permitted in writing by Matchwell. You must not attempt to reverse engineer, modify, adapt, translate, prepare derivative works from, decompile, attempt to interfere with the operation of, or otherwise attempt to derive source code from any part of the Matchwell Platform unless expressly permitted by applicable law. You will not access the Matchwell Platform in order to build a similar service or application, or publish any performance, or any benchmark test or analysis relating to the Matchwell Platform. Matchwell and our licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Matchwell Platform. The Matchwell logos and names are trademarks of Matchwell and may be registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols on the Matchwell Platform may be the trademarks of their respective owners. Except as expressly stated in this Agreement, nothing in this Agreement confers any license under any of Matchwell’s or any third party’s Intellectual Property Rights, whether by estoppel, implication, or otherwise.
  11. USER CONTENT LICENSE. You represent and warrant that you have the right, power, and authority to post the content you submit to the Matchwell Platform, and you grant the licenses specified below. You further represent and warrant that by posting or providing such user content you will not violate third-party rights of any kind, including, without limitation, any intellectual property rights, rights of publicity, and privacy rights. To the extent your user content may be copyrightable, you represent, warrant, and covenant that you are the owner of all the copyright rights to such user content and that Matchwell may exercise the rights to your user content granted under the Terms of Service without any liability or obligation for any payment. You retain all ownership rights in any user content you post on Matchwell. To the extent permitted by applicable law, you also grant to Matchwell and our successors and Affiliates a non-exclusive license to access your user content through the Matchwell Platform and to use, reproduce, distribute, display, and perform such user content to the extent permitted through the normal functionality of the Matchwell Platform and subject to all applicable confidentiality and other provisions of this Agreement, our Privacy Policy, and applicable law. Notwithstanding the foregoing paragraph, Matchwell will only use or disclose user content you post to any non-public area of the Matchwell Platform to the extent necessary to provide services to you and as may further be described in our Privacy Policy.
  12. DISPUTE RESOLUTION. The Matchwell Platform is created and controlled by Matchwell, LLC. YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. You agree that this Agreement will be governed by and construed in accordance with the laws of the United States of America and the State of North Carolina, without regard to its conflicts of law provisions. You agree that any dispute or claim arising out of, or in connection with, this Agreement shall be finally settled by binding arbitration in Raleigh, North Carolina, in accordance with the then-current rules and procedures of the American Arbitration Association by one (1) arbitrator appointed by the American Arbitration Association. The arbitrator shall apply the law of the State of North Carolina, without reference to rules of conflict of law or statutory rules of arbitration, to the merits of any dispute or claim. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties agree that, any provision of applicable law notwithstanding, the arbitrator shall have the authority to award the prevailing party its costs and reasonable attorneys’ fees. You agree that service of process upon you in any such action may be made if delivered in person, by courier service, by telegram, by telefacsimile or by first class mail, and shall be deemed effectively given upon receipt.

Use of the Matchwell Platform is not authorized in any jurisdiction that does not give effect to all provisions of this Agreement. We make no claims or assurances that the Web Site is appropriate or may be downloaded outside of the United States. In the event that the arbitration or class action terms are determined to be unenforceable or invalid for any reason, you agree that all legal proceedings arising out of or in connection with this Agreement or use of the Matchwell Platform must be filed in a federal or state court located in North Carolina within one year of the time in which the events giving rise to such claim began, or your claim will be forever waived and barred. You expressly submit to the exclusive jurisdiction of said courts and consent to extraterritorial service of process.

 

The parties hereby acknowledge that this Agreement is a commercial, not a consumer, contract; that they have had a full and fair opportunity to negotiate the terms of this Agreement and this arbitration provision and to consult with and utilize counsel of their choice before signing this Agreement; and that they have entered into this Agreement and this arbitration provision knowingly, intelligently, voluntarily and of their own free will.

 

 

For Healthcare Facilities.

LAST UPDATED: March 10, 2019

 

YOU AND MATCHWELL, LLC, A NORTH CAROLINA LIMITED LIABILITY COMPANY (“MATCHWELL”, “WE”, “US”, AND “OUR”) AGREE THAT YOUR ACCESS TO AND USE OF THE WEB APPLICATION AT THE WEB SITE LOCATED AT WWW.WEMATCHWELL.COM, AND ANY MOBILE APPLICATIONS (INCLUDING MOBILE OPTIMIZED WEB APPLICATIONS) PROVIDED BY US IN THE FUTURE, IS SUBJECT TO YOUR AGREEMENT TO THESE TERMS OF SERVICE. TO MAKE THESE TERMS OF SERVICE EASIER TO READ, THE FOREGOING REFERENCED WEB SITE, WEB APPLICATION AND ANY MOBILE APPLICATIONS ARE REFERRED TO COLLECTIVELY AS THE “MATCHWELL PLATFORM.” YOUR USE OF THE MATCHWELL PLATFORM IS SUBJECT TO YOUR AGREEMENT TO THESE TERMS OF SERVICE, WHICH WILL BECOME A BINDING AGREEMENT BETWEEN YOU AND US (THE “AGREEMENT”). WE ARE WILLING TO ALLOW YOU ACCESS TO THE MATCHWELL PLATFORM ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT. PLEASE READ THESE TERMS CAREFULLY. AFTER READING THE TERMS, IF YOU AGREE TO THE TERMS OF SERVICE, PLEASE INDICATE YOUR DECISION BY CLICKING THE CHECKBOX ON THE ACCOUNT SIGN UP/REGISTRATION FORM NEXT TO THE STATEMENT THAT READS “I have read and agreed to the Terms of Service.” IF YOU DO NOT AGREE, YOU WILL NOT BE ABLE TO ESTABLISH AN ACCOUNT AND USE THE MATCHWELL PLATFORM. IN ALL CASES, BY ACCESSING, REGISTERING AS A USER, VIEWING OR USING OUR WEB SITE, YOU AGREE TO THE TERMS OF SERVICE.

 

The Matchwell Platform is available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, you must be at least 18 years of age and legally authorized to work in the United States to use the Matchwell Platform. If you do not qualify, then you are not permitted to use the Matchwell Platform. You must complete a sign-up form in order to use the Matchwell Platform. You may have one Account (as defined below) to use the Matchwell Platform. We reserve the right to refuse registration of, or cancel, Accounts at any time and for any reason, as we deem appropriate.

 

The Matchwell Platform is owned and operated by Matchwell. The Matchwell Platform provides a marketplace where credentialed healthcare professionals seeking to render services in their area of specialization are matched to healthcare organizations and facilities (“Customers”) seeking to engage these professionals to perform clinical services on their behalf.

 

This Agreement is a binding contract between you and Matchwell. By using the Matchwell Platform, you acknowledge that you have read, agreed to, and accepted all of the terms and conditions contained in this Agreement.

 

1. ACKNOWLEDGMENT AND ACCEPTANCE OF AGREEMENT. You agree that your establishment of an account with Matchwell and your use of the Matchwell Platform constitutes the acceptance of and agreement to all terms of this Agreement.

 

2. USE OF THE MATCHWELL PLATFORM. To be able to use the Matchwell Platform and submit Engagement Requests (defined in section 10), you must create an account with Matchwell (“Account”) by (1) entering the required identifiers, including, but not limited to, your first and last name and your email address; (2) creating a professional profile including but not limited to your work preferences, credentials, certifications, résumé, employment history, and other information required to complete employment-related checks; (3) creating a username and password. You may suspend your Account at any time by contacting Matchwell. By registering with Matchwell, you understand that we may send you communications or data (by text, email, telephone or other methods) regarding Matchwell or the Matchwell Platform, including but not limited to: (a) notices about your use of the Matchwell Platform, including any notices concerning violations of use; (b) updates; and (c) promotional information and materials regarding Matchwell’s products and services. Matchwell will give you the opportunity to opt-out of receiving promotional electronic mail from Matchwell by following applicable opt-out instructions.

 

In consideration of the use of the Matchwell Platform, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the registration form, and (b) maintain and promptly update the personal information you provide to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to immediately terminate your access to the Matchwell Platform.

 

You are responsible for maintaining the confidentiality and security of your Account and password, and you are fully responsible for all activities that occur under your password or Account, and for any other actions taken in connection with the Account or password. You agree to (a) immediately notify us of any known or suspected unauthorized use(s) of your password or Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your password; and (b) ensure that you exit from your Account at the end of each session. We will not be liable for any injury, loss or damage of any kind arising from or relating to your failure to comply with the above clauses (a) and (b) or for any acts or omissions by you or someone else using your Account and/or password.

 

3. TERM AND TERMINATION. This Agreement shall remain in effect as long as you have an Account with Matchwell. Both you and Matchwell may terminate your Account at any time.

 

4. CREDENTIALING. Matchwell may obtain information about you from a third-party consumer reporting agency. You may be the subject of a “consumer report” and/or “investigative consumer report” which may include information about your character, general reputation, personal characteristics, and/or mode of living, and which can involve personal interviews with sources such as your neighbors, friends, or associates. These reports may contain information regarding your criminal history, references, address history, right to work, lawsuits, credit history, social security verification, motor vehicle records, verification of your education or employment history, or other background checks and any other information with public or private information sources. Matchwell carries out all checks as required per industry regulatory standards. You have the right, upon written request made within a reasonable time, to request whether a consumer report has been run about you, and disclosure of the nature and scope of any investigative consumer report and to request a copy of your report. Please be advised that the nature and scope of the most common form of investigative consumer report is licensure verification and employment history. As part of your initial registration with Matchwell, you agree to sign an authorization consent to a background check. These searches may be conducted on behalf of Matchwell by a third party. The scope of this disclosure is all-encompassing, allowing Matchwell to obtain from any outside organization all manner of consumer reports while you continue to use the Matchwell Platform and to the extent permitted by law.

 

By using the Matchwell Platform you authorize Matchwell (or a third party retained by Matchwell) and Customers to verify your credentials, including but not limited to your professional licenses, certifications, disciplinary history, and other items using primary verification sources. It is your responsibility to maintain your licenses and certifications for continued use of the Matchwell Platform.

 

Subject to a satisfactory background checks and credentials verification, you will be eligible to use the Matchwell Platform to view and submit Engagement Requests. If there is a problem with your background check, you cannot use the Matchwell Platform until the problem has been resolved. You have the right to dispute the accuracy or completeness of any information contained in the report.

 

Matchwell may receive information from Customers on your job performance and may use that information for any lawful purpose.

 

You agree to have your information published and made available to Customers. Your contact information will be made available to any Customer with which you are matched.

 

5. EMPLOYMENT/INDEPENDENT CONTRACTOR. As a user of the Matchwell Platform you acknowledge that you are not an employee of Matchwell. You will be an employee of either the Customer or a third-party employer, currently People2.0, (the “Third Party Employer”) (the Customer and the Third Party Employer may be collectively referred to as the “Employer”). The Employer will be responsible for all payroll activities and other employer obligations under this Agreement. Matchwell reserves the right to change who will act as the Third Party Employer.

 

You are not entitled to or eligible for any benefits that Matchwell may make available to its employees, such as group insurance, profit-sharing or retirement benefits. You agree that you have no claim under this Agreement or otherwise against Matchwell for vacation pay, sick leave, retirement benefits, social security, workers compensation, health, disability, or unemployment insurance benefits or other employee benefits of any kind.

 

You may be eligible to participate in the Employer’s benefits only to the extent that you are eligible, as established by the Employer in its sole discretion. The applicable Employer will withhold applicable payroll taxes and make required payments for social security, Medicare, unemployment and other applicable payments on your behalf.

 

You acknowledge and agree that Matchwell merely provides the platform for clinicians such as yourself and Customers to communicate and share information. You acknowledge and agree that the contract terms, pay rate, work hours, service dates, and working conditions will be established by the Customer and not by Matchwell. You acknowledge and agree that Matchwell does not, in any way, supervise, direct, or control Customers or clinicians such as you. Matchwell does not set your contract terms, fees, rates, work hours, work schedules, or locations of work. Matchwell does not provide you with training or any equipment, labor, or materials needed for a particular Engagement; Customers and/or the Third-Party Employer will provide all required training.

 

6. FEES AND COMPENSATION. There is no cost for you to use the Matchwell Platform. The compensation you will receive for providing services under an Engagement are determined by the Customer and not Matchwell. You have the control to set your own compensation preferences in the Matchwell Platform, and your Compensation is based on what you and the Customer agree upon pursuant to the Engagement. The Employer will be solely responsible for paying any compensation owed to you.

 

7. INSURANCE. The applicable Employer will provide for and carry professional liability insurance, insuring you for professional errors, omissions, negligence, incompetence and malfeasance with limits of liability meeting or exceeding the amounts required by any Customer. Matchwell will not provide any professional liability insurance or any other type of insurance on your behalf.

 

8. YOUR OBLIGATIONS AND REPRESENTATIONS. You confirm that all information provided to Matchwell and each Customer is true to the best of your knowledge. You acknowledge that any licenses or certifications you hold are in good standing and are active and unrestricted to practice in the state in which you would be working. You acknowledge that you have never been charged with or convicted of (i) any felony or (ii) a misdemeanor involving controlled substances, fraud, the delivery or payment of healthcare services or moral turpitude.

 

You represent and warrant that you have used your actual name and identifiers and have not used any aliases to misrepresent your actual identity. You represent and warrant that you have the full right, power, and authority to enter into and perform this Agreement without the consent of any third party (including any of your current or former employers).

 

You represent and warrant that you are not subject to any contract or duty that would be breached by entering into or performing your obligations under this Agreement, or any Engagement, or that is otherwise inconsistent with this Agreement or any Engagement.

 

You represent and warrant that you hold and will maintain in good standing all federal, state, and local licenses and certifications as required by law.

 

You will fully conform to the specifications, requirements, and other terms in any applicable accepted Engagement and this Agreement.

 

You will provide Matchwell with information requested by Matchwell from time to time regarding your credentials, including, but not limited to your licensure, certification, and insurance, and you will comply with Matchwell’s and any applicable Customer’s credentialing standards and requirements. You will notify Matchwell immediately of any allegation, action, claim, change, modification, disciplinary action or any other event that would, if resolved against you, affect the validity, active status or impair in any manner your underlying license(s) or certification(s). You will notify Matchwell through the Matchwell Platform of any change in name, address, state, or licensure.

 

9. MATCHWELL PLATFORM. The Matchwell Platform provides a marketplace where credentialed healthcare professionals seeking to render services in their area of specialization are matched to Customers seeking to engage these professionals to perform clinical services on their behalf. We are not responsible for the conduct, whether online or offline, of any user of the Matchwell Platform. We may make changes to the Matchwell Platform at any time without notice to you. The Matchwell Platform may be temporarily unavailable from time to time for various reasons. We assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, the Matchwell Platform. We are not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment or software, or the failure of email on account of technical problems or traffic congestion on the Internet or at any web site, including injury or damage to any person’s computer related to or resulting from participating or downloading materials or Submission in connection with the Matchwell Platform. THE MATCHWELL PLATFORM IS PROVIDED “AS-IS” AND WE DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT. WE CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE MATCHWELL PLATFORM.

 

10. ENGAGEMENTS. The Matchwell Platform enables you to specify Customers with which you would like to provide clinical services for which you are licensed and qualified. You authorize Matchwell to use the Matchwell Platform to match you with a Customer and their open shifts and/or positions based on your location and/or desired location, desired rate of pay, desired setting, user preferences, experience and professional license and certifications (collectively, an “Engagement Request”). You will be notified of a potential match with a Customer (an “Engagement”), and you may choose to accept the Engagement in your sole discretion through the Matchwell Platform. You are under no obligation to accept an Engagement.

 

After accepting an Engagement, you agree to make all reasonable efforts to be on time and successfully complete the entire agreed-upon Engagement. Failure to comply fully with rules and regulations may result in your removal by Matchwell as a participant/user of the Matchwell Platform. You may cancel accepted Engagements through the Matchwell Platform, but in the event you must cancel an accepted Engagement, you must provide Matchwell and the Customer with at least 12 hours’ notice prior to your assigned Engagement. Tardiness or failure to show up for accepted Engagements may result in your removal by Matchwell as a participant of the Matchwell Platform.

 

You agree to uphold all applicable standards of care and follow policies and procedures of the Customer where you will be providing clinical services. You will not accept Engagements that would put you or any Customer’s patients at risk, such as being overworked or fatigued. You agree that you will not work more than forty (40) hours per week from Engagements made on the Matchwell Platform. You agree to work within the scope of your licensure and practice according to state and federal laws. You will provide clinical services to a Customer (i) faithfully, diligently and to the best of your abilities, (ii) in a manner consistent with currently approved methods and practices customarily observed by similarly licensed providers within the community and (iii) in accordance with the standards of professional ethics and practice as may from time to time be applicable during the term of this Agreement.

 

You understand and agree that Matchwell cannot guarantee that you will receive a minimum number of or any Engagements. The matching process and establishment of Engagements are determined by you and the Customers.

 

You will complete patient notes and medical records in a manner required by the applicable Customer. All medical records, files, papers, documents, and clinical materials generated in connection with your clinical services shall be the property of the applicable Customer.

 

11. SUBSEQUENT EMPLOYMENT BY CUSTOMER. Matchwell will not restrict your ability to be hired by any Customer, but you are obligated to inform Matchwell of any Customer that demonstrates any intent to hire you outside of the Matchwell Platform. For the purposes of this Agreement, “hire” shall include a full-time hire, part-time hire, independent contractor hire, intern hire, or any other such engagement where you receive any compensation from Customer.

 

12. CONFIDENTIALITY. In the course of performing the services under this Agreement, you may receive, develop, be exposed to, or acquire Confidential Information of Matchwell, which shall include but is not limited to all information, data, reports, records, summaries, tables, studies, fund raising and marketing information, information that is confidential by its nature, whether such Confidential Information is written or oral, fixed in hard copy or contained in any computer data base or computer readable form, as well as any identified as confidential or proprietary by Matchwell (“Confidential Information”). You shall maintain the confidentiality of the Confidential Information and shall not disclose or permit the disclosure of such Confidential Information to any third party.

 

Nothing set forth herein shall operate to prohibit or prevent you from disclosing Confidential Information pursuant to any judicial or governmental order, legal requirement or court order, provided that you take reasonable steps to provide Matchwell with sufficient prior written notice in order to allow Matchwell to contest such request, requirement, or court order.

 

You acknowledge that in the course of providing services to Customers, you will be exposed to the Customer’s protected health information (“PHI”), as that term is defined in the Standards for Privacy of Individually Identifiable Health Information (the “Privacy Regulation”) under the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. § 1320d et seq., as amended from time to time, including the amendments made by Subtitle D of the Health Information Technology for Economic and Clinical Health Act provisions of the American Recovery and Reinvestment Act of 2009 (“HITECH Act”) and any current and future regulations promulgated thereunder (collectively, “HIPAA”). You recognize the confidentiality of all PHI, and you will use appropriate safeguards to prevent the use or disclosure of PHI except as permitted by law. You will fully comply with the Privacy Regulation and HIPAA, as applicable to your performance of your obligations under this Agreement and any Engagement.

 

We may use all Account registration information, subject to compliance with our Privacy Policy that can be found here (the “Privacy Policy”). This Agreement includes terms and conditions set forth in the Privacy Policy, and the Privacy Policy is incorporated herein by reference. By indicating your agreement to this Agreement, you are consenting to have your personal data used by us as set forth in the Privacy Policy.

 

13. INDEMNIFICATION AND HOLD HARMLESS PROVISION. You shall defend, indemnify and hold harmless Matchwell and its managers, members, officers, contractors, employees and agents from and against any and all claims, actions, liabilities, losses, costs and expenses of any nature whatsoever, including reasonable attorneys’ fees, resulting from: a) the provision of your clinical services, b) breach of any representation or warranty in this Agreement, or 3) your fraud, gross negligence or intentional or willful misconduct, or on account of any of your obligations, liabilities or debts.

 

14. LIMITATION OF LIABILITY. EXCEPT FOR CLAIMS RELATING TO (i) YOUR BREACH OF THIS AGREEMENT; (ii) YOUR INDEMNIFICATION OBLIGATIONS; (III) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (IV) A PARTY’S VIOLATION OF ANY APPLICABLE LAW, RULE OR REGULATION, (A) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, OR LOSS OF GOOD WILL) ARISING UNDER OR IN CONNECTION WITH A BREACH OR ALLEGED BREACH OF THIS AGREEMENT, EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) THE MAXIMUM LIABILITY OF MATCHWELL SHALL NOT EXCEED THE AMOUNT RECEIVED BY YOU FOR SERVICES PROVIDED TO A CUSTOMER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INITIAL CLAIM. THESE LIMITATIONS SHALL APPLY EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

15. NON-DISCRIMINATION. Matchwell does not discriminate against any candidate, applicant, employee, or independent contractor on the basis of race, color, religion, sex, national origin, age, creed, ancestry, veteran or military status, disability unrelated to the essential functions of an engagement, or any other basis prohibited by federal, state, or local law. Provider agrees, in accordance with the provisions and intent of this Agreement, not to differentiate or discriminate in treatment of patients because of race, color, national origin, ancestry, religion, sex, marital status, sexual orientation, age, health status or health insurance. Further, Provider shall render appropriate services to assigned patients in the same manner, in accordance with the same standards and within the same time availability as offered to Provider’s other patients.

 

16. NON-ASSIGNABILITY. Matchwell and Provider agree that neither the rights nor the duties as prescribed herein may be assigned by the Provider without the expressed written consent of Matchwell.

 

17. SURVIVAL. Sections 5, 11, 12, 13, 14, 23, and 24 will survive the expiration or earlier termination of the Agreement.

 

18. NON-WAIVER. No waiver of any term or condition of this Agreement by either party shall be deemed a continuing or further waiver of the same term or condition or a waiver of any other term or condition of this Agreement.

 

19. SEVERABILITY. In the event that any portion of this Agreement shall be determined to be invalid or unenforceable, the remainder of this Agreement shall be deemed to continue to be binding upon the parties hereto in the same manner as if the invalid or unenforceable provision were not a part of this Agreement.

 

20. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement between you and us pertaining to your use of the Matchwell Platform. We reserve the right, at our sole discretion, to change, modify, add, or delete portions of this Agreement at any time without further notice. If we do this, we will post the changes to this Agreement on this page and will indicate at the top of this page the new effective date (i.e., the LAST UPDATED date). Your continued use of the Matchwell Platform after any such changes constitutes your acceptance of the revised Agreement. If you do not agree to abide by this Agreement or any future revised Agreement, do not use or access the Matchwell Platform. It is your responsibility to regularly review this Agreement.

 

21. GOVERNING LAW. This Agreement shall be governed by, and construed in accordance with, the laws of the State of North Carolina, without regard to conflict of law provisions and shall constitute the entire Agreement between the parties.

 

22. INTELLECTUAL PROPERTY RIGHTS. Matchwell grants you a limited license to access and, if you have created an Account on the Matchwell Platform, to use the Matchwell Platform. You must not access (or attempt to access) the Matchwell Platform by any means other than the interface provided, and you will not use information from the Matchwell Platform for any purposes other than the purposes for which it was made available. You agree not to use the Matchwell Platform for offering any goods or services other than those you are contracted by the Customer. You must not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any content of the Matchwell Platform in any way for any public or commercial purpose without Matchwell’s prior written consent. You must not use any content of the Matchwell Platform on any other website or in a networked computer environment for any purpose except your own viewing without Matchwell’s prior written consent. You must not frame or link to the Matchwell Platform except as permitted in writing by Matchwell. You must not attempt to reverse engineer, modify, adapt, translate, prepare derivative works from, decompile, attempt to interfere with the operation of, or otherwise attempt to derive source code from any part of the Matchwell Platform unless expressly permitted by applicable law. You will not access the Matchwell Platform in order to build a similar service or application, or publish any performance, or any benchmark test or analysis relating to the Matchwell Platform. Matchwell and our licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Matchwell Platform. The Matchwell logos and names are trademarks of Matchwell and may be registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols on the Matchwell Platform may be the trademarks of their respective owners. Except as expressly stated in this Agreement, nothing in this Agreement confers any license under any of Matchwell’s or any third party’s Intellectual Property Rights, whether by estoppel, implication, or otherwise.

 

23. USER CONTENT LICENSE. You represent and warrant that you have the right, power, and authority to post the content you submit to the Matchwell Platform, and you grant the licenses specified below. You further represent and warrant that by posting or providing such user content you will not violate third-party rights of any kind, including, without limitation, any intellectual property rights, rights of publicity, and privacy rights. To the extent your user content may be copyrightable, you represent, warrant, and covenant that you are the owner of all the copyright rights to such user content and that Matchwell may exercise the rights to your user content granted under the Terms of Service without any liability or obligation for any payment. You retain all ownership rights in any user content you post on Matchwell. To the extent permitted by applicable law, you also grant to Matchwell and our successors and Affiliates a non-exclusive license to access your user content through the Matchwell Platform and to use, reproduce, distribute, display, and perform such user content to the extent permitted through the normal functionality of the Matchwell Platform and subject to all applicable confidentiality and other provisions of this Agreement, our Privacy Policy, and applicable law. Notwithstanding the foregoing paragraph, Matchwell will only use or disclose user content you post to any non-public area of the Matchwell Platform to the extent necessary to provide services to you and as may further be described in our Privacy Policy.

 

24. DISPUTE RESOLUTION. The Matchwell Platform is created and controlled by Matchwell, LLC. YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. You agree that this Agreement will be governed by and construed in accordance with the laws of the United States of America and the State of North Carolina, without regard to its conflicts of law provisions. You agree that any dispute or claim arising out of, or in connection with, this Agreement shall be finally settled by binding arbitration in Raleigh, North Carolina, in accordance with the then-current rules and procedures of the American Arbitration Association by one (1) arbitrator appointed by the American Arbitration Association. The arbitrator shall apply the law of the State of North Carolina, without reference to rules of conflict of law or statutory rules of arbitration, to the merits of any dispute or claim. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties agree that, any provision of applicable law notwithstanding, the arbitrator shall have the authority to award the prevailing party its costs and reasonable attorneys’ fees. You agree that service of process upon you in any such action may be made if delivered in person, by courier service, by telegram, by telefacsimile or by first class mail, and shall be deemed effectively given upon receipt.

 

Use of the Matchwell Platform is not authorized in any jurisdiction that does not give effect to all provisions of this Agreement. We make no claims or assurances that the Web Site is appropriate or may be downloaded outside of the United States. In the event that the arbitration or class action terms are determined to be unenforceable or invalid for any reason, you agree that all legal proceedings arising out of or in connection with this Agreement or use of the Matchwell Platform must be filed in a federal or state court located in North Carolina within one year of the time in which the events giving rise to such claim began, or your claim will be forever waived and barred. You expressly submit to the exclusive jurisdiction of said courts and consent to extraterritorial service of process.

 

The parties hereby acknowledge that this Agreement is a commercial, not a consumer, contract; that they have had a full and fair opportunity to negotiate the terms of this Agreement and this arbitration provision and to consult with and utilize counsel of their choice before signing this Agreement; and that they have entered into this Agreement and this arbitration provision knowingly, intelligently, voluntarily and of their own free will.