Terms of Service — Sonde Health

TERMS OF SERVICE

Last Updated: July 20, 2021

Welcome, and thank you for your interest in Sonde Health, Inc. (“Sonde,” “we,” or “us”) and our website at www.sondehealth.com, along with our related websites, networks, applications, mobile applications, and other services provided by us (collectively, the “Service”). These Terms of Service constitute a legally binding contract between you and Sonde regarding your visit, download or use of the Service.

PLEASE READ THE FOLLOWING TERMS CAREFULLY.

BY CLICKING “I ACCEPT,” OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU IRREVOCABLY AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS (TOGETHER, THESE “TERMS”). If you are not eligible, or do not agree to the Terms, then you do not have our permission to use the Service. YOUR USE OF THE SERVICE, AND SONDE’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY SONDE AND BY YOU TO BE BOUND BY THESE TERMS.

Arbitration NOTICE. Except for certain kinds of disputes described in Section 15, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND SONDE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 15.)

Sonde Service Overview. Our Service uses voice-based technologies that analyze voice samples in certain ways and provides you with related information.
Eligibility. You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service and/or your volunteering for research activities conducted by Sonde is in compliance with any and all applicable laws and regulations.
Accounts and Registration.
1. To access certain features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately change your password and notify us at support@sondehealth.com.
2. In case you volunteer to participate in any research activity and/or project of Sonde, you may be required to provide certain information to Sonde about yourself and will also gain access to certain features of the Service. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. You further agree to abide by these Terms at all times along with the other terms and conditions applicable to you.
Licenses
1. Limited License. Subject to your complete and ongoing compliance with these Terms, Sonde grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service.
2. License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you will not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you will not use it.
3. Feedback. If you choose to provide input and suggestions regarding your experience using or impressions regarding, or proposed modifications or improvements to, the Service (“Feedback”), then you hereby grant Sonde an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services, subject to any limitations on such use we may set forth in our Privacy Policy.
Ownership; Proprietary Rights. The Service is owned and operated by Sonde. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Sonde are protected by intellectual property and other laws. All Materials included in the Service are the property of Sonde or its third party licensors. Except as expressly authorized by Sonde, you will not make use of the Materials. Sonde reserves all rights to the Materials not granted expressly in these Terms.
Third Party Terms
1. Third Party Services and Linked Websites. Sonde may provide tools through the Service that enable you to transmit information, including User Content (as defined in Section 7.1), to or through third party services. By using one of these tools, you agree that Sonde may transfer that information to or through the applicable third party service. Third party services are not under Sonde’s control, and, to the fullest extent permitted by law, Sonde is not responsible for any third party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under Sonde’s control, and Sonde is not responsible for their content.
2. Third Party Software. The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
User Content
1. User Content Generally. Certain features of the Service may permit users to transmit content to the Service, including any voice samples, responses to questionnaires that we provide to you, images, text, and other types of works (“User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you transmit to the Service.
2. Limited License Grant to Sonde. By transmitting User Content to or via the Service, you grant Sonde a non-exclusive, perpetual, irrevocable, transferable, sublicensable (through various tiers), royalty-free and worldwide right and license, to the fullest extent permitted by law, to use, host, store, reproduce, create derivative works of, transfer, display, perform, modify, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed, subject to any limitations on such use we may set forth in our Privacy Policy.
3. User Content Representations and Warranties. Sonde disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:
  1. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Sonde to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Sonde, the Service, and these Terms;
  2. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Sonde to violate any law or regulation; and
  3. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
4. User Content Disclaimer. We are under no obligation to edit or control User Content transmitted to the Service, and will not be in any way responsible or liable for User Content. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Sonde with respect to User Content.
5. Monitoring Content. You acknowledge and agree that Sonde reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time Sonde chooses to monitor the content, Sonde still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy.
Prohibited Conduct. BY USING THE SERVICE, YOU AGREE NOT TO:
Digital Millennium Copyright Act
1. DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:

Sonde Health, Inc.
ATTN: Legal Department (Copyright Notification)
1 Washington Mall #3072, Boston, MA 02108
Email: info@sondehealth.com

Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include substantially the following:

an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
a description of the material that you claim is infringing and where it is located on the Service;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

Repeat Infringers. Sonde’s repeat infringer policy is to: (a) remove or disable access to material that Sonde believes in good faith, upon notice from an intellectual property rights owner or his or her agent, is infringing the intellectual property rights of a third party by being made available through the Service; and (b) in appropriate circumstances, to terminate the accounts of and block access to the Service by user who repeatedly or egregiously infringe other people’s copyrights or other intellectual property rights.

Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 10, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
Term, Termination and Modification of the Service
1. Term. These Terms are effective beginning when you accept the Terms or first access, or use the Service, and ending when terminated as described in Section 11.2.
2. Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Sonde may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at support@sondehealth.com.
3. Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Sonde any unpaid amount that was due prior to termination; and (d) and Sections 2, 3, 4.2, 4.3, 5, 6, 7, 8, 9, 10, 11.3, 12, 13, 14, 15, and 16 will survive.
4. Modification of the Service. Sonde reserves the right to modify or discontinue the Service at its sole discretion and at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Sonde will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Sonde and its officers, directors, employees, consultants, parent entities and shareholders, affiliates, subsidiaries, contractors, advertisers, service providers and agents (together, the “Sonde Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
Disclaimers; No Warranties

THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. SONDE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. SONDE DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND SONDE DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

It is hereby expressly clarified that, the Information that you obtain or receive from SONDE ENTITIES or otherwise on the SERVICE is for informational purposes only. SONDE makeS no guarantees, representations or warranties, whether expressed or implied, with respect to the professional qualifications, quality of work, expertise or other information provided on the SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR SONDE ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE SONDE ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA.

Please note that the content, text, data, graphics, images, information, suggestions, guidance, and other material that may be available on the SERVICE may NOT be provided by LICENSED MEDICAL PRACTIONERS OR BY QUALIFIED individuals FROM the medical profession. The provision of such Information does not create a DOCTOR-patient relationship between SONDE and you, and does not constitute an opinion, medical advice, or diagnosis or treatment of any particular condition, but is only provided to assist you with RELEVANT INFORMATION AND APPROACHING appropriate HEALTHCARE AND medical PROFESSIONALS. SONDE EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES IN RELATION TO ANY DIAGNOSTIC SERVICE, TREATMENT AND/OR CLINICAL SERVICE MADE AVAILABLE TO THE USER BY ANY THIRD PARTY IN CONNECTION WITH ANY INFORMATION PROVIDED ON THE SERVICE.

THE INFORMATION PROVIDED ON THE SERVICE has not been evaluated AND/OR APPROVED by the UNITED STATES Food and Drug Administration, THE DRUG CONTROLLER OF INDIA, medical professionals, medical bodies OR any OTHER STATUTORY BODY IN THE UNITED STATES AND/OR IN INDIA, and is not intended to diagnose, treat, cure or prevent any illness, condition or other health issue. INFORMATION PROVIDED ON THE SERVICE is not intended to be, and should not be used in the place of, the advice of medical professionals or any information provided on any product packaging or label. any information provided ON THE SERVICE is not intended to serve as a substitute for clinical advice and should not be relied upon while making treatment related decisions. For advice on medical issues you should always consult your doctor or other qualified health care professional. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the information or content made available via the Service.

SONDE DOES NOT PROVIDE MEDICAL OR OTHER LICENSED PROFESSIONAL ADVICE. ANY CONTENT ACCESSED THROUGH THE SERVICE IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO COVER ALL POSSIBLE USES, DIRECTIONS, PRECAUTIONS, OR ADVERSE EFFECTS. THE SERVICE IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. THE MATERIALS SHOULD NOT BE USED DURING A MEDICAL EMERGENCY OR FOR THE DIAGNOSIS OR TREATMENT OF ANY MEDICAL CONDITION. PLEASE CONSULT YOUR DOCTOR OR OTHER QUALIFIED HEALTH CARE PROVIDER IF YOU HAVE ANY QUESTIONS ABOUT A MEDICAL CONDITION, OR BEFORE COMMENCING OR DISCONTINUING ANY COURSE OF TREATMENT. DO NOT IGNORE OR DELAY OBTAINING PROFESSIONAL MEDICAL ADVICE BECAUSE OF INFORMATION ACCESSED THROUGH THE SERVICE. CALL THE EMERGENCY RESPONSE NUMBER SUCH AS 911 (IN US) OR 112 (IN INDIA) OR YOUR DOCTOR FOR ALL MEDICAL EMERGENCIES.

YOU ARE HEREBY NOTIFIED THAT VOICE AND BEHAVIOUR, PATIENT SYMPTOMS, FITNESS AND MEDICAL HISTORY, MEDICINES AND/OR MEDICINAL PRODUCTS AND OTHER RELATED INFORMATION DIFFERS FROM COUNTRY TO COUNTRY AND VARIES FROM REGION TO REGION.

THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. SONDE DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT SONDE IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE SONDE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OR CORRUPTION OF DATA, DOWNTIME, BUSINESS INTERRUPTION, REPLACEMENT SERVICE, LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY SONDE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

USERS FROM THE UNITED STATES MUST NOTE THAT EXCEPT AS PROVIDED IN SECTION 15.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE SONDE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO USD 100 (UNITED STATES DOLLARS ONE HUNDRED).

USERS FROM INDIA MUST NOTE THAT EXCEPT AS PROVIDED IN SECTION 15.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE SONDE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO INR 1,000 (INDIAN RUPEES ONE THOUSAND).

EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

Dispute Resolution and Arbitration
1. Generally. PROVISIONS GOVERNING DISPUTE RESOLITION, ARBITRATION, JURISDICTION AND GOVERNING LAWS UNDER THIS CLAUSE 15 AND CLAUSE 16 OF THE TERMS WILL APPLY TO USERS ACROSS THE WORLD INCLUDING USERS OF THE SERVICE FROM INDIA. In the interest of resolving disputes between you and Sonde in the most expedient and cost effective manner, and except as described in Section 15.2 and 16.2, you and Sonde agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND SONDE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
2. Exceptions. Despite the provisions of Section 15.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
3. Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 15 within 30 days after the date that you agree to these Terms by sending a letter to Sonde Health, Inc., Attention: Legal Department – Arbitration Opt-Out, 501 Boylston Street, Suite 6102, Boston, MA 02116, that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Sonde receives your Opt-Out Notice, this Section 15 will be void and any action arising out of these Terms will be resolved as set forth in Section 16.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
4. Arbitrator. Any arbitration between you and Sonde will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Sonde. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
5. Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Sonde’s address for Notice is: Sonde Health, Inc., 501 Boylston Street, Suite 6102, Boston, MA 02116. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Sonde may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Sonde must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Sonde in settlement of the dispute prior to the award, Sonde will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
6. Fees. If you commence arbitration in accordance with these Terms, Sonde will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Suffolk County, Massachusetts, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. 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 fees will be governed by the AAA Rules. In that case, you agree to reimburse Sonde for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
7. No Class Actions. YOU AND SONDE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Sonde agree otherwise, the arbitrator will not consolidate more than one person’s claims, and will not otherwise preside over any form of a representative or class proceeding.
8. Modifications to this Arbitration Provision. If Sonde makes any future change to this arbitration provision, other than a change to Sonde’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Sonde’s address for Notice of Arbitration, in which case your account with Sonde will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
9. Enforceability. If Section 15.7 or the entirety of this Section 15 is found to be unenforceable, or if Sonde receives an Opt-Out Notice from you, then the entirety of this Section 15 will be null and void and, in that case, exclusive jurisdiction and venue described in Section 16.2 will govern any action arising out of or related to these Terms.
Miscellaneous
1. General Terms. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Sonde regarding your use of the Service. You will not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to”. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
2. Governing Law. These Terms are governed by the laws of the Commonwealth of Massachusetts without regard to conflict of law principles. You and Sonde submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Suffolk County, Massachusetts, for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Boston, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
3. Privacy Policy. Please read the Sonde Privacy Policy [https://www.sondehealth.com/privacy-and-security] carefully for information relating to our collection, use, storage, disclosure of your personal information. The Sonde Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
4. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms. If there is any conflict or inconsistency between these Terms and any Additional Terms, these Terms will apply to the extent of the conflict or inconsistency unless the Additional Terms expressly state the Sections in these Terms that are superseded for the purposes of those Additional Terms only.
5. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
6. Contact Information. The Service is offered by Sonde Health, Inc., located at 501 Boylston Street, Suite 6102, Boston, MA 02116. You may contact us by sending correspondence to that address or by emailing us at info@sondehealth.com.
7. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
8. No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
Notice Regarding Apple. This Section 17 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Sonde only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby 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.