Arbitration is an alternative to litigation where a neutral person (the arbitrator) hears and decides the parties’ dispute. Arbitration proceedings are designed to provide parties with a fair hearing in a manner that is faster and less formal than court proceedings. The following procedures (the “Arbitration Procedures”) are applicable to all arbitration proceedings involving you and UpWell Health, LLC. arising out of, connected with, or relating to this Agreement (including any alleged breach thereof), the goods and services offered by or through UpWell, or the website.
Pre-Arbitration Dispute Resolution.
UpWell Health, LLC. is always interested in resolving disputes amicably and efficiently. So before you commence an arbitration, we suggest that you contact us to explain your complaint, as we may be able to resolve it without the need for arbitration. You may Contact Us online or at UpWell Health, LLC. Legal and Compliance, 10855 South Riverfront Pkwy #250, South Jordan, UT 84085.
The administrator for the arbitration is the American Arbitration Association (“AAA”), a non-profit organization that is not affiliated with UpWell Health, LLC. The AAA facilitates, but does not itself conduct, the arbitration. The arbitrator who will hear and decide your dispute will be chosen from the AAA’s roster of neutral arbitrators. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA’s rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page: http://www.adr.org/consumer_arbitration.
The arbitration will be governed by the AAA’s Commercial Arbitration Rules and its Consumer-Related Disputes Supplementary Procedures (together, the “AAA Rules”), as modified by these Arbitration Procedures. If there is any inconsistency between the AAA Rules and these Arbitration Procedures, these Arbitration Procedures will control. However, if the arbitrator determines that strict application of the Arbitration Procedures related to discovery would not result in a fundamentally fair arbitration (see paragraph 9 below), the arbitrator may make any discovery order necessary to provide a fundamentally fair arbitration that is consistent with the AAA Rules. For information on rules, visit: http://bit.ly/M8qI1P.
Commencing an Arbitration.
To commence a timely arbitration against UpWell Health, LLC., you must complete a short form, submit it to the AAA, and send a copy to UpWell Health, LLC. at UpWell Health, LLC. Legal and Compliance, 10855 South Riverfront Pkwy #250, South Jordan, UT 84085. To learn more about commencing an arbitration and to obtain a form to institute arbitration, see the AAA’s claim filing page, http://www.adr.org/fileacase, and its guide on Representing Yourself in Arbitration, http://www.adr.org/si.asp?id=4128. You may represent yourself in the arbitration or have a lawyer (or some other representative) act on your behalf. Upon receipt of a timely arbitration claim, UpWell Health, LLC. may assert any counterclaims it may have against the complaining party.
You are responsible for paying your portion of the fees set forth in the AAA’s fee schedule for consumer disputes. UpWell Health, LLC. will pay all remaining fees. If your claim against UpWell Health, LLC. is for less than $1,000, we will pay all fees. If you believe you cannot afford the AAA’s fee, you may apply to the AAA for a fee waiver.
Selection of the Arbitrator.
The parties, using the AAA’s standard procedures, will select a single arbitrator from a roster of neutrals prepared by the AAA.
If you are seeking less than $10,000, the arbitrator will decide the dispute based only upon the parties’ written submissions and, if requested by either party, a telephonic hearing. The parties may submit to the arbitrator written statements setting forth their positions no later than 60 days after the arbitrator’s appointment. Each party may also submit a rebuttal or supplemental statement within 15 days after initial statements are due. If a telephonic hearing is requested, it will occur within 90 days after the arbitrator’s appointment.
If you are seeking at least $10,000 but less than $50,000, any initial written statements will be due within 60 days after the arbitrator’s appointment, and any rebuttal or supplemental statements will be due within 15 days after initial statements are due. A telephonic hearing is required and will occur within 120 days after the arbitrator’s appointment.
If you are seeking $50,000 or more, initial written statements are required and must be submitted to the arbitrator within 90 days after his or her appointment. Any rebuttal or supplemental statements will be due within 30 days after initial statements are due. The hearing before the arbitrator must be in-person, unless both sides agree to a telephonic hearing, and will occur at a location to be determined by the arbitrator within 6 months after his or her appointment. Additionally, either party will have a right to file motions for summary judgment and motions in limine which shall be ruled upon prior to any hearing.
The arbitrator, upon a good cause application from either party, or on the arbitrator’s own initiative, may modify any of the foregoing deadlines. Additionally, for any matter in which a hearing (telephonic or otherwise) both sides shall provide a list of expected witnesses to be called no later than 15 days prior to the hearing.
The above rules also apply to claims or counterclaims brought by UpWell Health, LLC.
Each party may (a) request relevant, non-privileged documents from the other party; and (b) request that the other party provide sufficiently detailed information concerning the nature of their claims or defenses such that a full and fair hearing can be conducted. Any such discovery requests must be served on the other party within 15 days after the arbitrator’s appointment. The responding party shall provide the requesting party with all responsive, non-privileged documents, the requested particulars, and/or any objections to the requests within 30 days after receipt of the requests. Any disputes about discovery or requests for extensions shall be submitted promptly to the arbitrator for prompt resolution. In ruling on any discovery dispute or extension request, the arbitrator shall take into consideration the nature, amount, and scope of the underlying arbitration claim, the cost and other effort what would be involved in providing the requested discovery, the case schedule, and whether the requested discovery is necessary for the adequate preparation of a claim or defense. Unless the arbitrator finds good cause to do so, no other forms of written discovery (such as interrogatories or requests for admissions) may be utilized. No depositions may be taken, except by agreement of the parties or by order of the arbitrator upon a showing of good cause by the requesting party and a finding by the arbitrator that the deposition is necessary for a full and fair hearing.
Communications with the Arbitrator.
Whenever communicating with the arbitrator, the parties must include each other – for example, by including the other party on a telephone conference call and copying the other party on any written submissions, such as letters or emails. To the extent practicable, conferences with the arbitrator will take place by telephone conference call or email. Ex parte communications are not permitted with any arbitrator.
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 filing of confidential information must be done under seal. Following the issuance of an arbitration award, the arbitrator may order, upon the request of either party, that any materials supplied in the course of the arbitration be destroyed or returned to the producing party.
The arbitrator will render a written decision within 14 days after the hearing or, if no hearing was held, within 30 days after any rebuttal or supplemental statements are due. The decision must clearly specify the relief, if any, awarded and contain a brief statement of the reasons for the award. In addition to the arbitration award, if a party is represented by counsel, the arbitrator may, in his or her discretion, award the prevailing party attorneys’ fees as discussed herein. If any attorneys’ fees are awarded, the maximum amount shall be $1,000.00 (one thousand dollars), or 5% (five percent) of the total final arbitration award (i.e. the amount ultimately awarded after any proceedings to confirm, modify, or vacate the award have been heard) whichever is greater. However, UpWell Health, LLC. will not seek reimbursement of its attorney fees from the losing party. Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction.
A party shall be held in default if it: (a) fails to respond to a claim or counterclaim within the time prescribed by the AAA Rules; or (b) materially fails to participate in the arbitration process (e.g., by failing to submit information necessary to select an arbitrator, to respond to discovery requests in a timely and complete fashion, or to appear at conferences or the hearing). Upon default, the arbitrator shall enter an award in favor of the non-defaulting party and against the defaulting party.