COACH TERMS AND CONDITIONS
Last Update: April, 15 2019
Acceptance of Terms; Modifications.
You understand and agree that we may change the Terms from time to time, and that any such changes will be effective immediately when we post the modified Terms on the Service. Your continued access and use of the Service after we post the modified Terms will constitute your consent to be bound by the modified Terms.
Scope of Services
The Platform allows you to find, communicate and interact with members and physicians via messages, notes and video conference. The Services include but are not limited to an email account, a calendar account, a scheduling service, a video conference service and a dashboard to enter notes and other information related to the member.
Use of the Platform
When you use the Monj Platform, you represent, warrant and agree to the following:
Use the Platform only in a lawful manner and only for its intended purposes.
Not to submit viruses or other malicious code to or through the Platform.
Not to encourage or solicit Members to "follow" you or your business in social media, such as, but not limited to Facebook, Instagram, Twitter.
Not to use the Platform to offer any products or services that are not part of the Monj offerings such as, but not limited to, essential oils, personal training program, dietary supplements, beauty products, additional courses or materials that are not sold through the Platform.
Not to use the Platform for purposes of competing with us.
To perform all obligations under this Agreement in a manner consistent with all applicable laws and regulations and with the principles of good conduct and business ethics, in order to promote and enhance the name of Monj, the reputation of the Platform and the goodwill attached to any trade names or any trademarks by Monj or its affiliates.
Use your best efforts to actively promote the Services and represent us in a professional manner
Not to misrepresent us or our affiliated entities in any manner and make no statements, claims or warranties representing Monj which are not included in our public written materials
Have uttermost care of the Personal Information obtained about members while delivering the Services
As part of the Services, you will submit or upload text, photographs, images, videos, information and materials to the member's profile or otherwise in connection with using the Platform and/or participating in promotional campaigns for MonjWell (collectively, “Content”). We reserve the right to monitor, screen, edit and/or remove the Content from the Platform in our sole discretion.
If your name, voice, image, persona, likeness, or performance is included in any Content, you hereby waive, and release Monj and its users from, any claim or cause of action, whether known or unknown, for defamation, copyright infringement, invasion of the rights of privacy, publicity, or personality, or any similar claim arising out of the use of the Content in accordance with the License Section and other provisions of this Agreement.
You will be paid per the terms and in the manner as defined in the Payment Terms that will be sent to you via email. Monj does not guarantee that any members will be assigned to you at any given time.
As a condition of becoming a Monj Health Coach you will be subject to satisfactory background check. You agree to give accurate and timely information to process the background check to Monj or to any third party as determined in the sole discretion by Monj.
You will not be assigned any members until such time as you complete all required HIPAA Compliance courses
As a Health Coach you will have an orientation of the Platform. Members will be assigned only after the orientation is completed.
Monj will not provide liability insurance for the Health Coach. You understand that as an independent contractor you will not be covered by the company's liability insurance policy.
Independent Contractor Status.
Your relationship with Monj will be that of an independent contractor and not that of an employee. No agency relationship between us and you is created by this Agreement. Neither party shall have any right or authority to act on behalf of the other except as expressly provided in this Agreement, and neither party will represent that it has such right or authority. You will provide you own tools, instruments, equipment and place of performing the Services, unless otherwise agreed between the Parties.
As an independent contractor, each Health Coach is responsible for his/her own business decisions. Health Coaches are encouraged to set their own hours and operate their businesses in any manner they see fit that is consistent with their obligations under the Agreement. A Health Coach’s success depends on his/her skills, personal efforts, business acumen, and/or market conditions. The Company does not guarantee any level of income or success.
Employment Taxes and Benefits.
You will report as self-employment income all compensation received pursuant to this Agreement. You will indemnify Monj and hold it harmless from and against all claims, damages, losses, costs and expenses, including reasonable fees and expenses of attorneys and other professionals, relating to any obligation imposed by law on Monj to pay any withholding taxes, social security, unemployment or disability insurance, or similar items in connection with compensation received by Health Coach pursuant to this Agreement. You will not be entitled to receive any vacation or illness payments or to participate in any plans, arrangements, or distributions by Monj pertaining to any bonus, stock options, profit sharing, insurance or similar benefits for Monj’s employees.
Intellectual Property. Platform.
Monj and its licensors retain all right, title and interest in and to the Platform, the technology and software used to provide it, all electronic documentation and content available through the Platform, and all intellectual property and proprietary rights in the Platform and such technology, software, documentation and content. Except for your rights to access and use the Platform set forth in these Terms, nothing in these Terms licenses or conveys any of our intellectual property or proprietary rights to anyone, including you. You agree that we will have a perpetual right to use and incorporate into the Platform any feedback or suggestions for enhancement that you provide to us concerning the Services, without any obligation of compensation.
Monj owns all rights in and to its trademarks, service marks, brand names and logos (the “Marks”). Monj grants you, for so long as you are in good standing as a Health Coach, a limited, revocable, non-exclusive, non-transferable license to use the Marks solely in any manner specifically authorized in writing by Monj. As a condition of exercising such license, you agree that (1) all goodwill associated with your use of the Marks inures solely to the benefit of Monj, and (2) such license immediately terminates upon your ceasing to be a Health Coach in good standing, whether at your own option or because we suspend or terminate your rights to use the Platform.
By entering into these Terms and using the Platform, you agree, to the fullest extent permitted by applicable law, that you shall defend, indemnify and hold Monj, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, members, employees, attorneys, assigns and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with:
your violation or breach of any of these Terms or any applicable law or regulation;
your violation of any rights of any third party;
your use or misuse of the Platform;
your advice to a Member that contradicts any advice not given in written by Monj
YOU FURTHER AGREE THAT YOU WILL COOPERATE WITH US IN THE DEFENSE OF SUCH CLAIMS. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION UNDER THIS SECTION, AND YOU WILL NOT SETTLE ANY SUCH CLAIM OR MATTER WITHOUT OUR ADVANCE WRITTEN CONSENT
DISCLAIMER OF WARRANTIES
The information and materials found on the Platform, including text, graphics, information, links or other items, are provided "as is" and "as available." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MONJ DOES NOT: (1) WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF THE INFORMATION AND MATERIALS ON THE PLATFORM; (2) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN MONJ; (3) WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, FREE FROM COMPUTER VIRUSES, UNINTERRUPTED, ALWAYS AVAILABLE, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS IN THE PLATFORM WILL BE CORRECTED. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE PLATFORM, AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY.
Platform may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. we are not responsible for any delays, delivery failures, or other damage resulting from such problems.
LIMITATION OF LIABILITY. EXCLUSION OF CERTAIN TYPES OF DAMAGES.
MONJ SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE PLATFORM, EVEN IF MONJ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MONJ SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF YOUR USE OF OR RELIANCE ON THE PLATFORM OR YOUR INABILITY TO ACCESS OR USE THE PLATFORM INCLUDING WITHOUT LIMITATION DAMAGES RELATED TO ANY SUSPENSION OR TERMINATION OF YOUR ACCESS TO THE PLATFORM, OR ANY FAILURE ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION OF THE PLATFORM, EVEN IF WE ARE AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES, LOSSES OR EXPENSES. MONJ SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND MONJ'S REASONABLE CONTROL. IN NO EVENT SHALL MONJ'S TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED FIVE HUNDRED U.S. DOLLARS (US $500).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH MONJ AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
Arbitration Agreement; Claims. This Section is referred to as the "Arbitration Agreement” in these Terms. Unless you opt out of the Arbitration Agreement in accordance with the procedure described below, you and Monj (together, the “Parties”) agree that any and all disputes or claims that arise between you and relating to the Monj Service, interactions with others on the Monj Service, and/or these Terms (including any alleged breach of these Terms) (collectively, “Claims”), except for Excluded Claims (defined in the following sentence), will be resolved as set forth in this Arbitration Agreement. As used herein, “Excluded Claims” means (1) individual claims brought in small claims court (if your claims qualify), (2) claims in which either party seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property (including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents), and (3) claims that, as a matter of applicable law, cannot be made subject to arbitration.
Agreement to Arbitrate. Unless you opt out of the Arbitration Agreement in accordance with the procedure described below, you agree that any and all Claims (other than Excluded Claims) will be resolved exclusively on an individual basis through final and binding arbitration, rather than in a court, in accordance with this Arbitration Agreement, and your rights in connection with all Claims (other than Excluded Claims) will be determined by a neutral arbitrator, not by a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To the extent that the Parties' dispute involves both timely filed Excluded Claims and other Claims subject to this Agreement, the Parties agree to bifurcate and stay for the duration of the arbitration proceedings any such Excluded Claims.
Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND MONJ AGREE THAT, UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT IN ACCORDANCE WITH THE SECTION BELOW, EACH OF US MAY BRING CLAIMS (EXCEPT TO THE EXTENT THAT THE RIGHT TO BRING A CLAIM IN A PURPORTED CLASS OR REPRESENTATIVE ACTION CANNOT BE WAIVED AS A MATTER OF LAW) AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND MONJ AGREE OTHERWISE (OR TO THE EXTENT THAT THE RIGHT TO BRING A CLAIM IN A PURPORTED CLASS OR REPRESENTATIVE ACTION CANNOT BE WAIVED AS A MATTER OF LAW), THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER MONJ USERS.
Pre-Arbitration Dispute Resolution. Before you commence arbitration, we suggest that you contact us to explain your complaint. Our preference will always be to resolve complaints amicably and efficiently, without the need for arbitration. You may contact us via email at email@example.com or by mail at Monj, Inc., Attn: Legal, 27 Gate Five Road, Sausalito, CA 94965. If the issue is not resolved and results in arbitration, we will need to mutually select and agree upon an arbitrator and the rules and procedures to govern the arbitration.
Arbitration Procedures. The Parties will try in good faith to mutually select and agree upon an arbitrator and rules and procedures to govern the arbitration. If we cannot agree, then the arbitration will be conducted by a neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”), as modified by this Arbitration Agreement. The rules that apply are those in effect when arbitration is demanded by either of the Parties. For information on JAMS, please visit its website, https://www.jamsadr.com/. The JAMS Streamlined Arbitration Rules and Procedures are available at www.jamsadr.com/rules-streamlined-arbitration, which are incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and any claim that the JAMS Rules are unfair or should not apply for any reason. If there is any inconsistency between the JAMS Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would, including without limitation, the limitation of liability provisions. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms and applicable law. The arbitrator shall submit a decision in writing, specifying the findings of fact and the conclusions of law on which the decision is based. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
The arbitration will be held in San Francisco or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Monj may elect to have the arbitration conducted by telephone or based solely on written submissions, which election will be binding on you and Monj subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by you and/or Monj, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of California, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator will not be bound by rulings in prior arbitrations involving different Monj users, but is bound by rulings in prior arbitrations involving the same Monj user to the extent required by applicable law. As limited by the Federal Arbitration Act, these Terms and the applicable JAMS Rules, the arbitrator will have (1) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Claim, including the determination of whether a Claim is arbitrable, and (2) the authority to grant any remedy that would otherwise be available in court.
Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be shared equally by you and Monj, except where prohibited by applicable law. In addition, (1) if you demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Monj will pay your portion of such fees, and (2) if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Monj will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Each party will be solely responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Monj for all fees associated with the arbitration paid by Monj on your behalf that you otherwise would be obligated to pay under the JAMS Rules.
Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Severability. If any term, clause or provision of this Arbitration Agreement is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Arbitration Agreement will remain valid and enforceable.
Opt-Out Procedure. You can choose to reject this Arbitration Agreement by mailing us a written opt-out notice ("Opt-Out Notice") in accordance with the terms of this Section. For new Health Coaches, the Opt-Out Notice must be postmarked no later than 30 days after the date you accept these Terms for the first time. You must mail the Opt-Out Notice to Monj, Inc., Attn: Legal, 27 Gate Five Road, CA 94965. The Opt-Out Notice must state that you do not agree to the Arbitration Agreement and must include your name, address, phone number, and the email address(es) used to register as a Health Coach to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out of the Arbitration Agreement, the entire Arbitration Agreement will not apply with respect to you, but the remainder of these Terms will continue to apply. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us. By opting out of binding arbitration, you are agreeing to resolve Claims (including Excluded Claims) in accordance with the Governing Law and Jurisdiction Section below.
Future Changes to this Arbitration Agreement. Notwithstanding any provision in these Terms to the contrary, you agree that if we make any changes to this Arbitration Agreement (other than a change to any notice address or website link provided herein) in the future, that change will not apply to any claim that was filed in a legal proceeding against Monj prior to the effective date of the change. Moreover, if we terminate this Arbitration Agreement by removing it from these Terms, such termination will not be effective until 30 days after the version of these Terms not containing the Arbitration Agreement is posted to the Site, and will not be effective as to any claim that was filed in a legal proceeding against Monj prior to the effective date of removal.
Term and Termination. These Terms are effective upon your access or use of the Platform. You or Monj may terminate your participation in the Platform at any time, for any reason and we may prohibit your use of the Platform at any time in our sole discretion. These Terms, and any subsequent modification of these Terms, shall remain in effect at all times after you or Monj terminate your access or participation in the Platform. However, if you have any sessions already in place with a members, either individual sessions or group sessions, we require that you give us 10 days notice before terminating the Agreement so we can find another Health Coach to cover any sessions you might have outstanding.
Governing Law and Jurisdiction. These Terms, and any dispute between you and Monj, will be governed by the laws of the State of California, without regard to principles of conflicts of law, except that the Federal Arbitration Act will govern the interpretation and enforcement of the Arbitration Agreement. Unless you and Monj agree otherwise, in the event that the Arbitration Agreement is found not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that arises between you and Monj must be resolved exclusively by a state or federal court located in the State of California. You and Monj agree to submit to the personal jurisdiction of the courts located within San Francisco, California for the purpose of litigating all such claims or disputes.
Miscellaneous. Nothing in this Agreement will be construed as making either party the partner, joint venturer, agent, legal representative, employer, contractor or employee of the other. Neither party will have, or hold itself out to any third party as having, any authority to make any statements, representations or commitments of any kind, or to take any action, that will be binding on the other, except as provided for herein or authorized in writing by the party to be bound.
Assignment. Health Coach may not assign or transfer any of Health Coach's rights or delegate any of Health Coach's obligations under this Agreement, in whole or in part, without Monj's express prior written consent. Any attempted assignment, transfer or delegation, without such consent, will be void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties permitted successors and assigns.
Severability. The invalidity, illegality or unenforceability of any term or provision of these Terms will in no way affect the validity, legality or enforceability of any other term or provision of these Terms. In the event a term or provision is determined to be invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and these Terms will be enforceable as so modified.
Notices. Monj may give notice by means of a general notice on the Platform, electronic mail to your email address on record in Monj’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in Monj's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after sending. You may give notice to Monj (such notice shall be deemed given when received by Monj) by sending an electronic mail message to Monj at: firstname.lastname@example.org.
Entire Agreement. This Agreement constitutes the complete and exclusive understanding and agreement of the parties with respect to the subject matter hereof and supersedes all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof.