Consumer Terms and Conditions

OpenBeds Inc., a Delaware corporation (“OPENBEDS”) provides the website openbeds.net that links to or references these Consumer Terms and Conditions (including all content and functionality available through openbeds.net) to you (“You” or “Your”) subject to these Consumer Terms and Conditions (“Terms”) and subject to OPENBEDS’ other policies, including our Privacy Policy and Cookie Policy, incorporated herein by reference. These Terms require that disputes between us be resolved by binding arbitration rather than by jury trials or class actions and limit your remedies in the event of a dispute.

 

1. Terms and Conditions of Use

 

You accept these Terms by accessing or using openbeds.net in any manner. You represent and warrant that You are at least 18 years of age and of legal competence to enter into this agreement. You also represent and warrant that You (i) are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.

 

OPENBEDS may change these Terms at any time, including by adding new provisions or removing existing provisions, except as otherwise provided in these Terms. The most current version of these Terms can be accessed at https://www.openbeds.net/terms-of-use-consumer. By continuing to access or use openbeds.net, You accept any changes or revisions to the Terms.

 

IF YOU DO NOT AGREE TO ALL OF THESE TERMS DO NOT USE OPENBEDS.NET.

References to “OPENBEDS,” “You,” “we,” and “us” in these terms include (where appropriate) our agents, service providers, employees, predecessors in interest, successors, and assigns, as well as all authorized or beneficiaries of services provided by OPENBEDS.

 

OPENBEDS is not a consumer reporting agency. Information provided by openbeds.net is not a consumer report.

 

2. License to Use openbeds.net

 

a) OPENBEDS grants You a personal, non-exclusive, non-transferable, limited and revocable license to use openbeds.net subject to the Terms. You may use openbeds.net and information acquired from openbeds.net for personal use only, provided that such personal use is not to determine consumer eligibility for any purpose covered by the Fair Credit Reporting Act (as further described herein) and is at all times for lawful purposes. You may not use openbeds.net in a manner that exceeds the rights granted for Your use.

 

b) Other than connecting to openbeds.net by http request using a web browser, You may not attempt to access OPENBEDS’ servers or openbeds.net by any means. In particular, You are prohibited from scraping, crawling, data-mining, or using any robot, spider, or other automatic device to send queries to the OPENBEDS’ servers or openbeds.net.

 

c) You agree not to disrupt, modify or interfere with openbeds.net, or its associated software, hardware, and servers in any way. You agree not to impede or interfere with others’ use of openbeds.net. You further agree not to alter or tamper with any information or materials on or associated with openbeds.net.

 

d) You may not use openbeds.net or any information acquired from openbeds.net:

 

i) to engage in activities that would violate applicable local, state, national or international law, or any regulations having the force of law, including the laws, regulations, and ordinances of any jurisdiction from which You access openbeds.net;

ii) to evaluate a consumer’s eligibility for credit or insurance to be used primarily for personal, family, or household purposes, to evaluate a person’s eligibility for employment or volunteering purposes, to evaluate a person’s eligibility for a government license or benefit, to evaluate a person for renting a dwelling property, or for any other purpose specified in the Fair Credit Reporting Act (15 U.S.C. § 1681b) (the “FCRA”), Federal Trade Commission or court interpretations of the FCRA, or similar state statutes; or

iii) in any manner that may violate any local, state, federal, or international privacy law to which You may be subject on the basis of Your location.  You agree not to search for, or submit to OPENBEDS, information relating to persons other than Yourself.

 

 

3. Information Available Through Openbeds.net

 

a) OPENBEDS stores data from its healthcare customers on behalf of the healthcare customer or the state where such customer is located. OPENBEDS does not verify the data. While we endeavor to provide you with the most up to date and accurate information, OPENBEDS does not evaluate each piece of information provided and makes no guarantees to consumers about the accuracy of any information or how recently any information was collected or updated. As a user of openbeds.net, You agree that there are no warranties or guarantees whatsoever regarding the information provided.

 

b) OPENBEDS does not own or control the data it holds on behalf of its healthcare customers.  As such, any requests for deletion or correction will be provided to that healthcare entity for consideration.

 

4. Privacy Policy

 

a) OPENBEDS maintains a Privacy Policy describing its collection, retention, and use of information about consumers. This policy can be accessed here, and is incorporated herein by reference.

 

5. Notification

 

a) Any notices to be given to OPENBEDS under these Terms shall be made in writing to jmatthes@appriss.com or to the following address:

 

Appriss Inc.
9901 Linn Station Road, Ste. 500
Louisville, KY 40223
Attn: General Counsel

 

b) You agree that OPENBEDS can send You electronic notices to any e-mail address that You provide to OPENBEDS or by displaying the notice on openbeds.net. You agree that all notices, agreements, disclosures, and other communications that we provide to You electronically satisfy any legal requirement that such communications be in writing.

 

6. Warranty

 

OPENBEDS MAKES NO WARRANTY, REPRESENTATION, COVENANT, OR GUARANTEE WHATSOEVER, EXPRESS OR IMPLIED:

 

i) AS TO THE VALUE, QUALITY, TIMELINESS, USEFULNESS, RELIABILITY, SECURITY, SUITABILITY, TRUTHFULNESS, OR COMPLETENESS OF OPENBEDS.NET, THE SERVICES, THE INFORMATION, OR THE CONTENT;

ii) THAT OPENBEDS.NET, THE SERVICES, THE INFORMATION, OR THE CONTENT WILL MEET YOUR NEEDS OR EXPECTATIONS; OR

iii) THAT ANY ERRORS ON OPENBEDS.NET WILL BE CORRECTED.

 

7. Limitation of Liability

 

a) To the extent permitted by law, OPENBEDS shall have no liability, relating to Your use of (or connection to) openbeds.net, for:

 

i) consequential, incidental, exemplary, special, or punitive damages even if advised of the possibility of such;

ii) loss of business, profits, business information, or business interruption, or any other pecuniary loss; or

iii) for direct damages, actually proven, exceeding $1,000.00 USD. This limitation shall be enforced even if it causes an exclusive remedy to fail of its essential purpose.

 

b) OPENBEDS reserves the right, at any time, in OPENBEDS’ sole and exclusive discretion, to amend, modify, suspend, or terminate openbeds.net, any services, information or content, or any part thereof, and/or Your use of or access to them, with or without notice. OPENBEDS shall have no liability to You or any other person or entity for any modification, suspension, or termination, or any loss of related information.

 

8. Indemnification

 

a) You agree to defend, indemnify, and hold OPENBEDS and each of the respective healthcare entities, and each of their officers, directors, employees, agents, licensors, and suppliers, harmless from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and related fees and expenses, resulting from, or alleged to result from, Your violation of these Terms or Your use of openbeds.net.

 

b) OPENBEDS reserves the right to assume exclusive control of its defense in any matter subject to Your indemnification, which shall not excuse Your obligation to indemnify OPENBEDS. You shall not settle any dispute subject to Your indemnification under these Terms without written consent from OPENBEDS.

 

9. Choice of Law

 

a) If You are a citizen or resident of the United States, the law of the state of Your residence governs this contract and any claim or dispute that You may have against us, without regard to that state’s conflict of laws rules, to the extent that such law is not preempted by federal law. If You are a citizen or resident of another country, the law of the Commonwealth of Kentucky, USA shall apply.

 

b) The United Nations Convention on Contracts for the International Sale of Goods shall have no applicability.

 

10. Agreement to Arbitrate

 

Please read this carefully. It affects your rights.

 

a) Disputes Subject to Arbitration. OPENBEDS and You agree to arbitrate all disputes and claims between us, including, but not limited to:

 

  • claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
  • claims that arose before this or any prior agreement between us (including, but not limited to, claims relating to advertising or disclosures); and
  • claims that may arise after the termination of this agreement.

Notwithstanding the foregoing, either party may bring an individual action in small claims court, provided that it seeks relief that does not affect other customers.

Any dispute as to the arbitrability of claims or the scope or enforceability of this arbitration provision, or as to the interpretation of paragraph (11)(e) below, is for the court to decide. These Terms evidence a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of the agreement between us.

 

(b) Starting the Dispute-Resolution Process. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to OPENBEDS should be addressed to: General Counsel, Appriss Inc., 9901 Linn Station Road, Ste. 500, Louisville, KY 40223 (“Notice Address”). The Notice must (a) provide Your mailing address, phone number, and account name (if any); (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). If OPENBEDS and You do not reach an agreement to resolve the claim within 45 days after the Notice is received, You or OPENBEDS may commence an arbitration proceeding with the American Arbitration Association (“AAA”).

 

(c) Costs of Arbitration. OPENBEDS will pay all AAA filing, administration, and arbitrator fees for any arbitration we initiate. The payment of those fees for any arbitration that You initiate will be governed by the AAA Rules. The filing fee currently is $125 for claims for up to $10,000 in damages, but is subject to change by the AAA. However, if you initiate an arbitration in accordance with the notice requirements of paragraph (11)(b) and are seeking relief valued at $300 or less (both to You and us), OPENBEDS will pay all AAA filing, administration, and arbitrator fees. If your claim is for greater than $300 but less than $10,000, OPENBEDS will pay all such fees in excess of $20. After OPENBEDS receives notice at the Notice Address that You have commenced such an arbitration, OPENBEDS will promptly reimburse you for any portion of the filing fee that you paid that OPENBEDS has agreed to pay.

If the arbitrator finds that either the substance of Your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all AAA filing, administration, and arbitrator fees shall be governed by the AAA Rules, and You agree to reimburse us for any amounts we have paid on Your behalf to the AAA.

 

(d) Arbitration Procedures. The arbitrator shall be bound by the terms of this arbitration provision. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the AAA, as modified by this arbitration provision. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The AAA shall administer the arbitration. If the AAA is unavailable, the arbitration will be administered by another arbitration provider that the parties agree to or that the court selects.

 

Unless OPENBEDS and You agree otherwise, any arbitration hearings will take place in the county (or parish) of Your residence at the time of the filing of the Demand. If you bring a claim for $10,000 or less, we agree that You may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If Your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.

Arbitrators may consider but shall not be bound by rulings in prior arbitrations involving different customers. Arbitrators shall be bound by rulings in prior arbitrations involving the same customer to the extent required by applicable law.

 

Unless the parties agree otherwise, You and we must bring all directly related claims in a single arbitration proceeding. If You or we later initiate a subsequent arbitration asserting claims that are directly related to ones that were raised in a prior arbitration between the same parties, the AAA or the arbitrator shall either (i) consolidate the subsequent arbitration with the earlier proceeding if it is ongoing or (ii) dismiss any claims raised in the subsequent arbitration that would be barred by applicable law if brought in court.

Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Although under some laws OPENBEDS may have a right to an award of attorneys’ fees and expenses if it prevails in an arbitration, OPENBEDS agrees that it will not seek such an award unless You are represented by an attorney and the arbitrator has determined that Your claim is frivolous or brought for an improper purpose (as measured by the standards of Federal Rule of Civil Procedure 11(b)).

 

(e) Prohibition of Class or Representative Actions and Non-Individualized Relief. YOU AND OPENBEDS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF, CLASS MEMBER, OR PARTICIPANT IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both You and OPENBEDS agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class, representative, or private attorney general proceeding. The arbitrator may award any relief that a court could award, so long as the relief is individualized to the claimant and would not affect other OPENBEDS users. Neither You nor we may seek non-individualized relief that would affect other OPENBEDS users. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.

 

(f) Future Changes to Agreement to Arbitrate. Notwithstanding any provision in these Terms to the contrary, we agree that if OPENBEDS makes any future change to this arbitration provision (other than a change to the Notice Address, website links, or telephone numbers listed in this provision), any such changes will not affect disputes that arose before the effective date of the change.

 

11. Third-Party Rights.

 

The provisions of Paragraphs 8 (Limitation of Liability), 9 (Indemnification), and 11 (Agreement to Arbitrate) are for the benefit of OPENBEDS and its officers, directors, employees, agents, suppliers, and healthcare customers.  Each of these individuals shall have the right to assert and enforce those provisions directly against You on its own behalf.

 

12. Entire Agreement

 

a) These Terms and any OPENBEDS policies posted on openbeds.net constitute the entire contract between You and OPENBEDS and supersede all previous written or oral contracts. Except as provided in paragraph (11)(e), if any part of the Terms is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Any failure by us to enforce any term of the Terms shall not affect our right to require performance at any subsequent time, nor shall the waiver by us of any breach by You of any provisions of these Terms be taken to be a waiver of the provision or provisions itself.

 

Last Updated: April 16, 2020