Last Updated 5.20.22
THE SERVICES ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. SOUNDLY ACTS SOLELY AS A CONSUMER DEVICE E-COMMERCE AND INFORMATIONAL PLATFORM AND VENUE TO CONNECT PATIENTS WITH HEARING HEALTH PHYSICIANS, AUDIOLOGISTS AND OTHER HEARING HEALTH PROFESSIONALS AND SUPPLIERS.
THROUGH THE SERVICES, THIRD PARTIES, AND LINKS TO OTHER WEB SITES, SOUNDLY PROVIDES GENERAL HEALTHCARE INFORMATION FOR EDUCATIONAL AND INFORMATIVE PURPOSES ONLY AND IS NOT A HEALTHCARE PROVIDER. SOUNDLY IS NOT A MEDICAL OR OTHER CLINICAL PROFESSIONAL, AND WE DO NOT PROVIDE MEDICAL OR OTHER CLINICAL SERVICES, RENDER MEDICAL OR OTHER CLINICAL ADVICE OF ANY KIND, OR MAKE CLINICAL, MEDICAL, OR OTHER PROFESSIONAL DECISIONS. YOU ACKNOWLEDGE AND AGREE THAT SOUNDLY DOES NOT ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR THE ACCURACY, EFFICACY, OR VERACITY OF ANY INFORMATION OR RECOMMENDATION RECEIVED OR PROVIDED THROUGH THE SERVICES. YOU FURTHER ACKNOWLEDGE AND AGREE THAT SOUNDLY DOES NOT ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY CLINICIAN, AUDIOLOGIST, OR ANY OTHER THIRD PARTY MADE AVAILABLE BY, OR CONNECTED WITH THROUGH, THE SERVICES. THE SERVICES ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL OR OTHER CLINICAL ADVICE, DIAGNOSIS, OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL OR OTHER HEALTH CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL OR CLINICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THE SERVICES! THE SERVICES ARE NOT INTENDED FOR EMERGENCY USE. IF YOU ARE EXPERIENCING A MEDICAL OR OTHER EMERGENCY, YOU SHOULD IMMEDIATELY CALL “911” OR SEEK IMMEDIATE MEDICAL OR OTHER APPROPRIATE EMERGENT ATTENTION.
PLEASE BE AWARE THAT SECTION 13 (DISPUTE RESOLUTION) OF THE AGREEMENT BELOW CONTAINS PROVISIONS GOVERNING HOW ANY DISPUTES BETWEEN US WILL BE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
PLEASE BE AWARE THAT SECTION 2.2 (SOUNDLY COMMUNICATIONS) OF THE AGREEMENT BELOW CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING, AS APPLICABLE, VIA E-MAIL, TEXT MESSAGE, AND CALLS.
- THE SERVICES. Soundly is a hearing health e-commerce and informational platform that offers transparency and access to the hearing health world, including, without limitation, hearing health and hearing loss products, services, and information. Among the tools and resources available as part of the Services are:
- Compare Hearing Health Products. Search and compare products in an e-commerce environment.
- Purchase Over-the-Counter Consumer Technology. You will be able to purchase some products that are available over the counter with a credit card.
- Referral to Hearing Loss Clinician. If a prescription is required for a selected device or product, or if you need any other clinical services, you can request that Soundly connect you with a clinical professional. Upon receiving your consent, Soundly will send your contact information to a clinical professional who will follow-up with you via the contact method you provide. SOUNDLY IS NOT LIABLE OR RESPONSIBLE FOR ANY ADVICE, COURSE OF TREATMENT, DIAGNOSIS OR ANY OTHER INFORMATION OR PRODUCT YOU OBTAIN THROUGH OR FROM SUCH CLINICIAN.
- Search for an Audiologist. The audiologist search portal is provided for informational purposes only and allows consumers to search, sort and link to the website of more than 4,000 local hearing health practices. DIRECT CARE AND SCHEDULING OF APPOINTMENTS ARE NOT AVAILABLE THROUGH THE SERVICES. YOU MUST VISIT THE AUDIOLOGIST WEBSITE OR CONTACT THEM DIRECTLY TO SCHEDULE AND OBTAIN THEIR SERVICES. You may be asked to fill out a referral form for any “telehealth” or “in-home” partners found through the audiologist search portal.
- Product Chat. Soundly has partnered with a third party, TrebleHealth, to provide access to you to send chats to and receive communications during business hours (“Product Chat”). The Product Chat shall not be used to provide or receive any medical advice or assistance and will only provide general educational information related to hearing health products or services. NO TREATMENT, TESTING OR DIAGNOSIS WILL OR SHOULD TAKE PLACE IN THE PRODUCT CHAT SPACE. ANY CONTENT OR INFORMATION PROVIDED TO YOU THROUGH THE PRODUCT CHAT SHALL BE DEEMED THIRD PARTY CONTENT UNDER SECTION 3.1. AS STATED ABOVE, SOUNDLY DOES NOT PROVIDE ANY CLINICAL OR OTHER PROFESSIONAL HEALTH CARE OR HEARING HEALTH SERVICES. THE PRODUCT CHAT FEATURE AND SERVICES ARE PROVIDED BY A THIRD PARTY, AND SOUNDLY IS NOT LIABLE OR RESPONSIBLE FOR ANY ADVICE OR ANY OTHER INFORMATION YOU OBTAIN THROUGH THIS SERVICE.
- Hearing Assessment. Soundly has developed a simple and fast online hearing assessment (“Soundly Hearing Assessment”) that will produce a visual graphs that reveal the shape or severity of your hearing loss, if any. ANY HEARING TEST OR EXAMINATION CONDUCTED BY SOUNDLY IS NOT A MEDICAL OR CLINCIAL TEST OR EXAMINATION AND IS SOLELY FOR INFORMATIONAL PURPOSES. RESULTS MAY VARY AND MAY DEPEND IN PART ON THE QUALITY AND STYLE OF YOUR EARBUDS OR HEADPHONES. THE SOUNDLY HEARING ASSESSMENT IS NOT A CERTIFIED HEARING TEST AND DOES NOT INCLUDE AN IN-PERSON COMPONENT. THE RESULTS OF YOUR SOUNDLY HEARING ASSESSMENT ARE NOT A MEDICAL OR CLINICAL DIAGNOSIS OF YOUR HEARING ABILITY.
- USE OF THE SERVICES. The Services, and the information and content available on them, are protected by applicable intellectual property laws. Subject to the Agreement, Soundly grants you a limited license to access and use the Services for your personal use. Unless subject to a separate license between you and Soundly, your right to use any and all Services is subject to the Agreement.
- Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any of the Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other parts of the Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Soundly’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Agreement. Soundly, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Service or Services terminates the licenses granted by Soundly pursuant to the Agreement.
- Soundly Communications. By entering into the Agreement or using the Services, you agree to receive communications from us (or our third-party providers, affiliates and partners, including those medical providers and audiologists who are listed on our platform), including via e-mail, text message, and calls. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, providers and affiliates, and news concerning the Soundly and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. IF YOU WISH TO OPT OUT OF SOUNDLY’S PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. IF YOU WISH TO OPT OUT OF SOUNDLY’S PROMOTIONAL CALLS OR TEXTS, YOU MAY TEXT “END” TO THE PHONE NUMBER THAT SENT YOU THE TEXT/CALL FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE SERVICES. IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM US (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS OR CALLS), YOU CAN TEXT THE WORD “STOPALL” TO THE PHONE NUMBER THAT SENT YOU THE TEXT OR CALL FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE SERVICES. TO OPT OUT OF PROMOTIONAL COMMUNICATIONS FROM OUR AFFILIATES, PLEASE FOLLOW THE INSTRUCTIONS THEY PROVIDE.
- Necessary Equipment and Software. You must provide all equipment and software necessary to connect to and use the Services, including any earbuds or headphones for use with the Soundly Hearing Assessment. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
- RESPONSIBILITY FOR CONTENT.
- Third-Party Content. The Services may expose you to content, websites, products and services created or provided by parties other than Soundly (“Third-Party Content”). Soundly does not review, endorse or assume any responsibility for Third-Party Content and shall have no liability to you for access to or use of Third-Party Content. You access or use Third-Party Content at your own risk and discretion, and you understand that this Agreement does not apply to such Third-Party Content.
- User Content. You and any Users are similarly responsible for all Content that you and they make available through the Services (“User Content”), such as comments to blog posts. Soundly is not responsible for and does not control User Content. Soundly may but has no obligation to review or monitor User Content, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
- Services. Except with respect to Your Content and other User Content, you agree that Soundly and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and Soundly software). You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.
- Trademarks. Soundly’s name and all related stylizations, graphics, logos, service marks and trade names used on or in connection with any Services are the trademarks of Soundly and may not be used without permission in connection with your, or any third-party, products or services. Third party trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
- Your Content. Soundly does not claim ownership of Your Content. However, when you post or publish Your Content on or in any Services, you represent that you own or have all necessary rights to post or publish Your Content on or in the Services.
- Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Soundly through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Soundly has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Soundly a fully paid, royalty-free, perpetual, irrevocable, worldwide, and non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Soundly’s business.
- USER CONDUCT. As a condition of use, you agree not to use any of the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) make available any Content on or through the Services that: (i) infringes, misappropriates or otherwise violates any intellectual property right, right of publicity, right of privacy or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Soundly’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Soundly; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services.
- PRODUCT PURCHASE TERMS.
- Orders. The Services provide you with the ability to submit orders for certain over-the-counter products (“Order(s)”) and you may be asked to supply certain information relevant to your Order including, without limitation, your Payment Provider (as defined below) and your shipping information. Soundly reserves the right, at its sole discretion, to refuse or cancel any Order for any reason. THE TERMS OF THIS SECTION 6 DO NOT APPLY TO PRODUCTS PURCHASED THROUGH A MEDICAL OR OTHER CLINICAL PROVIDER OR SUPPLIER EVEN IF YOU WERE CONNECTED WITH OR REFERRED TO SUCH PROVIDER OR SUPPLIER THROUGH THE SERVICES.
- Payment. You agree to pay all charges that may be incurred by you or on your behalf in connection with all Orders placed through the Services, at the price(s) in effect when such charges are incurred including, without limitation, all shipping and handling charges. Your credit card or other payment provider agreement governs your use of the designated credit card or payment account (“Payment Provider”), and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing Soundly with your credit card number or payment account and associated payment information, you agree that Soundly is authorized to immediately charge your Payment Provider for all fees and charges as they become due and payable and that no additional notice or consent is required. You agree to immediately notify Soundly of any change in your billing address or the credit card or payment account used for payment hereunder. Soundly reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you.
- Shipping. We will arrange for shipment of the products to you by the applicable retailer or manufacturer. You agree to pay any shipping and handling charges shown at the time you confirm an Order. You acknowledge and agree that all shipments will be made through the applicable brand, and not through Soundly. Soundly shall not be liable for any loss, damage, theft, or shipment delays in connection with any item purchased through the Services.
- Third-Party Seller. BY PURCHASING A PRODUCT, YOU ACKNOWLEDGE THAT YOUR ORDER WILL BE FULFILLED BY THE THIRD PARTY SELLER AND NOT BY US. We share certain information with that seller in order to permit the seller to fulfill and ship your order, process returns, and provide customer service. We require all sellers to keep your information secure. The seller will be responsible for all processing, shipping, returns, and customer service related to your Order. You should contact the seller directly via the contact information provided on the product page for any inquiries or customer service issues related to the seller’s products. Products purchased from a seller can only be returned to that seller in accordance with the seller’s return policy and cannot be returned to us. Further, we describe our merchandise and include pictures and photographs on our Services, but sometimes the product varies slightly from the picture or description, and we are not liable for these variations. The inclusion of any products on the Services at a particular time does not guarantee that such products will be available. SOUNDLY DISCLAIMS ANY AND ALL LIABILITY, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING THAT OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, FOR ALL PRODUCTS PURCHASED THROUGH THE SERVICES, AND MAKES NO REPRESENTATIONS AS TO THE SHIPPING, QUALITY OR CONDITION OF ANY PRODUCT RECEIVED BY YOU FROM A THIRD PARTY SELLER.
- Resale Prohibited. You may not, under any circumstances, resell any products you purchase from or through Soundly, whether or not you purchased the products through the Services. You represent and warrant that you are buying products from the Services for your own personal use only, and not for resale or export.
- Withholding Taxes. You agree to make all payments of fees to Soundly free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Soundly will be your sole responsibility, and you will provide Soundly with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
- INDEMNIFICATION. You agree to indemnify and hold Soundly, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Soundly Party” and collectively, the “Soundly Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Service in violation of the Agreement; (c) your violation of any rights of another party, including any Users; or (d) your violation of any applicable laws, rules or regulations. Soundly reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to fully cooperate with Soundly in asserting any available defenses. This provision does not require you to indemnify any of the Soundly Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.
- DISCLAIMER OF WARRANTIES AND CONDITIONS.
- As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. SOUNDLY EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
- SOUNDLY MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
- ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
- SOUNDLY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SOUNDLY OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
- YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR YOUR USE OF ANY PRODUCTS PURCHASED HEREUNDER, THAT SOUNDLY IS SOLELY AN INFORMATIONAL PLATFORM AND DOES NOT PROVIDE MEDICAL OR CLINICAL ADVICE. SOUNDLY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR ANY AND ALL PERSONAL INJURY, ACCIDENTS OR PROPERTY LOSS ARISING FROM YOUR USE OF ANY HEARING HEALTH OR HEARING LOSS PRODUCTS PURCHASED AND USED BY YOU, WHETHER OR NOT SUCH PRODUCT WAS PURCHASED THROUGH OR AS A RESULT OF INFORMATION OBTAINED THROUGH THE SERVICES.
- FROM TIME TO TIME, SOUNDLY MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT SOUNDLY’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
- No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT SOUNDLY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD SOUNDLY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING ANY HEALTH PROFESSIONALS, AUDIOLOGISTS, THIRD PARTY SELLERS, OR OTHER PARTIES WITH WHOM YOU INTERACT AS A RESULT OF OR THROUGH THE SERVICES, OPERATORS OF EXTERNAL SITES, AND OTHER USERS OF THE SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
- Third-Party Materials. As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Soundly to monitor such materials and that you access these materials at your own risk.
- LIMITATION OF LIABILITY.
- Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL SOUNDLY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT SOUNDLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A SOUNDLY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A SOUNDLY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A SOUNDLY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, SOUNDLY PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) TOTAL AMOUNT PAID TO SOUNDLY BY YOU DURING THE THREE (3)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY OR (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A SOUNDLY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A SOUNDLY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A SOUNDLY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SOUNDLY AND YOU.
- MONITORING AND ENFORCEMENT. Soundly reserves the right to: (a) remove or refuse to post any of Your Content for any or no reason in our sole discretion; (b) take any action with respect to any of your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates the Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Soundly; (c) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or (d) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement.
- TERM AND TERMINATION.
- Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.
- Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Agreement and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with the Agreement.
- Termination of Services by Soundly. If you have materially breached any provision of the Agreement or if Soundly is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Soundly has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Soundly’s sole discretion and that Soundly shall not be liable to you or any third party for any termination of your access to the Services or your rights under these Terms.
- Termination of Services by You. If you want to terminate the Services provided by Soundly, you may do so by ceasing your use of the Services.
- Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Soundly will not have any liability whatsoever to you for any suspension or termination. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
- No Subsequent Access or Use. If this Agreement is terminated by Soundly due to your violation of any portion of the Agreement or for conduct otherwise inappropriate, then you agree that you shall not attempt to access or use the Services again. In the event that you violate the immediately preceding sentence, Soundly reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
- INTERNATIONAL USERS. The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Soundly intends to announce such Services or Content in your country. The Services are controlled and offered by Soundly from its facilities in the United States of America. Soundly makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
- DISPUTE RESOLUTION. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires U.S. users to arbitrate disputes with Soundly and limits the manner in which you can seek relief from us.
- Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Services, to any products sold or distributed through the Services, or to any aspect of your relationship with Soundly, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify, and (b) you or Soundly may seek equitable relief in court for infringement or other misuse of intellectual property rights. This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
- Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent: Cogency Global, Inc., 850 New Burton Road, Suite 201, Dover, DE, 19904. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Soundly will pay them for you. In addition, Soundly will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Soundly. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
- Waiver of Jury Trial. YOU AND SOUNDLY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Soundly are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 (Application of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of California. All other disputes, claims, or requests for relief shall be arbitrated.
- 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: [email protected] within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your email address (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
- Severability. Except as provided in Section 13.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Soundly.
- Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Soundly makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Soundly at the following address: 4470 W Sunset Blvd, Ste 326, Los Angeles, CA 90027.
- THIRD-PARTY SERVICES. The Services may contain links to third-party websites, applications and advertisements for third parties (collectively, “Third-Party Links”). When you click on a link to a Third-Party Link, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Links are not under the control of Soundly. Soundly is not responsible for any Third-Party Links. Soundly provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links, or any product or service provided in connection therewith. You use all links in Third-Party Links at your own risk. When you leave our Website, the Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Links, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
- GENERAL PROVISIONS.
- ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
- Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Soundly agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the State of California.
- Electronic Communications. The communications between you and Soundly may take place via electronic means, whether you visit the Services or send Soundly e-mails, or whether Soundly posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Soundly in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Soundly provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
- Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Soundly’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Force Majeure. Soundly shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: [email protected]. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
- Notice. Where Soundly requires that you provide an e-mail address, you are responsible for providing Soundly with your most current e-mail address. In the event that the last e-mail address you provided to Soundly is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Soundly’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Soundly at the following address: [email protected]. Such notice shall be deemed given when received by Soundly by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
- Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Severability. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
- Export Control. You may not use, export, import, or transfer any Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you 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. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Soundly are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Soundly products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
- Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.