Concha Labs Terms of Use

Last Updated: June 3, 2024

Introduction

These Terms of Use (these “Terms” or “Terms of Use”) are effective between Concha Labs, Inc., a Delaware Corporation that owns and operates Concha Labs (collectively referred to herein as “Concha Labs,” “us,” “we,” or “our”) and any user of our website (the “Site”) located at www.conchalabs.com (such users referred to herein as “you,” or “your”).

These Terms of Use govern: (i) your use of the Site; (ii) the service available through the software applications offered by us through the Site or otherwise (the “Apps”); (iii) our hearable devices (each a “Device”); and (iv) the functionality provided by the Apps and the services and resources available or enabled via the Site (the “Services” and, collectively with the Site, Apps and Devices, the “Concha Labs Properties”) and set forth the legally binding terms governing your access to and use of the Concha Labs Properties. These Terms apply to all access to or use of the Concha Labs Properties, regardless of your level of participation.

Certain features of the Concha Labs Properties may be subject to additional guidelines, terms or rules, which will be posted in connection with such features. All such additional terms, guidelines and rules are incorporated by reference into these Terms. In the event of a conflict between the additional terms or any other agreement and any provision in these Terms, the additional terms will prevail, but only with respect to the portion of the Concha Labs Properties to which the additional terms apply.

THESE TERMS INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. THESE TERMS LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

By accessing or using the Site or Services, including by downloading and installing the Apps or registering for or using the Services, you represent that (i) you have read, understand and accept (on behalf of yourself or the entity that you represent) the Terms; (ii) you are of legal age to form a binding contract with Concha Labs; (iii) you have the right, authority, and capacity to enter into these Terms (on behalf of yourself or the entity that you represent); (iv) all information you submit to Concha Labs is true, current, accurate, and complete, and you will update such information as necessary; and (v) you will not use the Concha Labs Properties for any illegal or unauthorized purpose or to violate any applicable Terms, law, or regulation. If you do not agree with the above provisions of these Terms, you may not access and/or use the Concha Labs Properties. We reserve the right to terminate your account and refuse your use of thereof if you fail to comply with the above representations.

Medical Exam Waiver; Children

By using the Concha Labs, you acknowledge that you are 18 years of age or older and that you have been advised by Concha Labs that the U.S. Food and Drug Administration has determined that you should still consider having your hearing evaluated by a licensed physician (preferably with expertise in ear diseases) to determine the type and amount of your hearing loss before getting a hearing aid.

Concha Labs does not sell Services, market its services or devices, or allow use of its Site by children under the age of 18. Children under the age of 18 should not submit Personal Information (as defined in our Privacy Policy) to us.

Privacy

Your privacy is very important to us. Any information Concha Labs collects through your use of the Site or Services is subject to the Concha Labs Privacy Policy. Capitalized terms used but not defined in these Terms shall have the meanings ascribed to them in our Privacy Policy.

Use of Concha Labs Properties

Subject to the terms and conditions herein and in consideration of the rights to use the Services granted by Concha Labs to you, Concha Labs grants you a revocable, limited, non-transferable, non-sublicenseable license to use the Concha Labs Properties for your own personal use. With respect to any App accessed through or downloaded from the Apple App Store, Google Chrome Web Store, Google Play marketplace, or any similar store or marketplace (each, an “App Store” and references to an App Store include the corporate entity and its subsidiaries making such App Store available to you), you agree to comply with all applicable third party terms of the relevant App Store (e.g. Apple App Store’s “Usage Rules” (the “Usage Rules”)).

The rights granted to you in the Terms are subject to the following restrictions: (i) you shall not license, sell, rent, lease, transfer, assign, reproduce, communicate to the public, distribute, host, or otherwise commercially exploit the Concha Labs Properties or any portion of the Concha Labs Properties; (ii) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Concha Labs Properties (including images, text, page layout, or form) of Concha Labs; (iii) you shall not use any metatags or other “hidden text” using Concha Labs’ name or trademarks; (iv) you shall not modify, translate, adapt, merge, make derivative works of (including data collections, compilations, databases, or directories), disassemble, decompile, reverse compile, or reverse engineer any part of the Concha Labs Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law or permitted by Concha Labs; (v) you shall not use any manual or automated software, devices, or other processes (including spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to “scrape” or download data from any web pages contained in the Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site 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); (vi) you shall not use the Site for the development of any software program, including but not limited to, training a machine learning or artificial intelligence (AI) system; (vii) you shall not access the Concha Labs Properties in order to build a similar or competitive website, application, or service; (viii) except as expressly stated herein, no part of the Concha Labs Properties may be copied, reproduced, communicated to the public, distributed, republished, downloaded, displayed, posted, or transmitted by you in any form or by any means; (ix) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Concha Labs Properties; (x) you shall not use a buying agent or purchasing agent to make purchases on the Site (except you may have an authorized family member or designated personal representative purchase products on your behalf for your own personal use so long as you agree to be bound by all Terms contained herein); (xi) you shall not use the Concha Labs Properties to advertise or offer to sell goods or services; (xii) you shall not circumvent, disable, or otherwise interfere with security-related features of the Concha Labs Properties, or upload, transmit, or attempt to upload or transmit any viruses, Trojan horses, or any malware or other materials that would interfere with a party’s use and enjoyment of the site, or modify, impair, disrupt, alter, or interfere with the use, features, functions, operations, or maintenance of the Concha Labs Properties; (xiii) you shall not use the Concha Labs Properties to trick, defraud, mislead, impersonate another, harass, abuse, stalk, bully, intimidate, annoy, disparage, tarnish, threaten, or otherwise harm another, or post communications that are tortious, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, libelous, pornographic, obscene, patently offensive, promote racism, bigoted, or hateful against any group or individual, including Concha Labs, its employees or agents engaged by Concha Labs Properties to provide Service; and (xiv) you shall not use the Concha Labs Properties in any manner inconsistent with applicable laws or regulations.

Applicability of Terms

Any future release, update, or other addition to the Concha Labs Properties shall be subject to the version of these Terms published by Concha Labs as of the date you install or use such future release, update, or other addition. You agree, however, that we are not obligated to create or provide any support, corrections, updates, upgrades, bug fixes, or enhancements of the Concha Labs Properties. Concha Labs, and its suppliers and licensors, reserve all rights not granted in the Terms. Any unauthorized or illegal use of the Concha Labs Properties terminates the licenses granted by Concha Labs pursuant to the Terms.

Your Member Account

To use certain features of the Concha Labs Properties, you may have to create an account (“Member Account”). When you set up your Member Account, you will be required to create log-in credentials by providing certain types of personal information (“Login Credentials”). You are responsible for maintaining the confidentiality of your Login Credentials and for all activities that occur related thereto. You agree not to allow a third party to use your Login Credentials at any time. Concha Labs reserves the right to terminate any username and password which Concha Labs reasonably determines may have been used by an unauthorized third party. YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR LOGIN CREDENTIALS AND YOU WILL BE RESPONSIBLE FOR ANY AND ALL ACTIVITIES THAT ARE CONDUCTED THROUGH YOUR MEMBER ACCOUNT.

Third Party Links

Concha Labs Products and Services may contain links to third-party websites (each a “Third Party Website”) that are not owned or controlled by Concha Labs. Concha Labs has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any Third Party Websites. In addition, Concha Labs will not and cannot censor or edit the content of any Third Party Website. By clicking on links, you expressly relieve Concha Labs from any and all liability arising from your use of any Third Party Website, or from the content of any Third Party Website. When using a Third Party Website, you should be aware when you leave the Site and read the terms and conditions and privacy policy of each Third Party Website that you visit.

Making Purchases

If you wish to purchase any products through the Site or Apps, you shall be required to supply certain information applicable to your purchase, including payment, contact, and other information. Any such information will be treated as described in our Privacy Policy. All information that you provide to us or our third party payment processor must be accurate, current, and complete. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARDS OR OTHER PAYMENT MEANS USED TO INITIATE ANY TRANSACTION. You agree to pay all charges incurred by you or any users of your account and credit card (or other applicable payment mechanism) at the prices in effect when such charges are incurred. You will also be responsible for paying any applicable taxes relating to your purchases. Verification of information applicable to a purchase may be required prior to our acceptance of any order, at our sole discretion.

Descriptions, images, references, features, content, specifications, products, prices, and availability of any products or services are subject to change without notice, and our current prices can be found on the Site. We make reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any products or services on the Site at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) regarding the possession, use, and sale of any item purchased through the Site. By placing an order, you represent that the products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any product or service; to change the pricing of any product or service; to honor or impose conditions on the honoring of, any coupon, coupon code, promotional code, or other similar promotions; to bar any user from making any or all purchases; and to refuse to provide any user with any product or service.

Title and risk of loss for any purchases pass to you upon our delivery to a common carrier. When you place an order, you will be charged at time of purchase. We reserve the right to ship partial orders (at no additional cost to you), and the portion of any order that is partially shipped may be charged at the time of purchase. Note also that for international orders, Concha Labs will not be able to cover shipping and customs costs (if applicable).

Limited Warranty

Concha Labs represents and warrants that the Devices will be free from material defects for a period of two years from the date of purchase (the “Limited Warranty”). The Limited Warranty is the only warranty of any kind made by Concha Labs with respect to the Devices, and Concha Labs expressly disclaims, to the extent permitted by applicable law, all other warranties of any nature, express or implied. The Limited Warranty is subject to the following conditions:

(i) The Limited Warranty only covers product issues caused by defects in materials or workmanship that arise in your ordinary use of the Device.

(ii) The Limited Warranty applies whether you purchase directly from Concha Labs, or from a Concha Labs affiliated third party.

(iii) The Limited Warranty applies only to the original purchaser and is not transferable. (iv) Concha Labs' obligation under the Limited Warranty shall in no event exceed the cost of repair or replacement of the Device(s) in question.

(v) Concha Labs expressly reserves the right not to service any Device after the Limited Warranty has expired.

(vi) If the Limited Warranty is applicable to a given Device, Concha Labs will, at its discretion, repair the Device with new or refurbished parts, or replace the Device with a new or recertified/refurbished Device of the same or superior model. For purposes of this Limited Warranty, “recertified” or “refurbished” means a Device or part of a Device that has been returned to its original specifications.

(vii) The Limited Warranty shall not extend in duration upon any replacement hereunder. (viii) The Limited Warranty only applies to hardware components, and does not cover software, accessories, or consumables like disposable batteries, ear tips, or wax filters.

(ix) The Limited Warranty is not applicable to defects due to abuse or failure to use the Device in accordance with instructions.

(x) The Limited Warranty is void in the event of unauthorized repair or modification, or removal or defacing of the product labeling.

(xi) The Limited Warranty is not applicable to damage caused by the user or a third party, theft, loss, improper handling, exposure to chemicals, exposure to water or undue stress, or any other accidental or intentional damage.

To initiate a claim under the Limited Warranty, contact us at +1 (510) 544-6778, or email us at care@conchalabs.com. The cost of shipping in the event of repair or replacement will be paid by Concha Labs. If your Device is covered by the Limited Warranty, we will provide a prepaid shipping label and an RMA (Return Merchandise Authorization) number.

Application Store Additional Terms and Conditions

The following additional terms and conditions apply if you are using an App from an App Store to use or access the Concha Labs Properties:

Acknowledgement. These Terms are concluded between Concha Labs and you only, and not with any App Store. Concha Labs, not the App Store, is solely responsible for the App and the content thereof. To the extent these Terms provide for usage rules for the App that are less restrictive than the Usage Rules as defined in these Terms, or otherwise are in conflict with the App Store’s terms of service, the more restrictive or conflicting App Store terms of service or Usage Terms shall apply, as applicable.

Scope of License. As further described in these Terms, the license granted to you for the App is limited to a non-transferable license to use App on either an iOS or Android device that you own or control and as permitted by the Usage Rules.

Maintenance and Support. Concha Labs is solely responsible for providing any maintenance and support services (if any) with respect to the App, as specified in these Terms, or as required under applicable law. Concha Labs and you acknowledge that the App Store has no obligation whatsoever to furnish any maintenance and support services with respect to the App.

Warranty. Concha Labs, and not the App Store, is responsible for product warranties, whether express or implied by law, as described in these Terms. If the App fails to conform to any applicable warranty, you may notify the App Store, and the App Store may refund the purchase price of the App to you; and to the maximum extent permitted by applicable law, the App Store will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be Concha Labs’ responsibility.

Product Claims. Concha Labs and you acknowledge that the App Store is not responsible for addressing any of your or any third party’s claims relating to the App or your possession or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. These Terms limit Concha Labs’s liability to you beyond what is required under applicable law.

Intellectual Property Rights. Concha Labs and you acknowledge that, in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, the App Store will not be responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.

Legal Compliance. 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.

Terms. You must comply with applicable third party terms of agreement when using the App, if any. You agree that the App Store (and its subsidiaries) is a third party beneficiary of these Terms and will have the right to enforce these Terms.

Resale

Your resale of Devices under these Terms of Use is strictly prohibited.

No Professional Advice

The Services are not designed to provide professional diagnosis or treatment services to you or any other individual. Through the Services and links to other web sites, Concha Labs provides general healthcare information for educational and informative purposes only and is not a healthcare provider. The information provided on these Services, or through links to other websites, or by employees, agents or representatives of Concha Labs on or off the Site, by chat, email, telephone, in person or through any other form of communication, is not a substitute for medical or professional care, and you should not use the information in place of a visit, call, consultation or the advice of your physician or other healthcare provider. More specifically, the “Sound Profiler” located on the Site or the Apps is not a medical diagnosis of your hearing ability and should be used for informational purposes only. Concha Labs personnel are not hired as medical professionals for the purposes of providing advice to patients, and any communications with Concha Labs personnel will not create a healthcare provider-patient relationship or be subject to any sort of privacy interest other than those described in our Privacy Policy. Concha Labs is not liable or responsible for any advice, course of treatment, diagnosis or any other information or product you obtain through the Services. Concha Labs does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Service. Reliance on any information provided on the Site or through the Services is solely at your own risk.

Limitation Of Liability

IN NO EVENT WILL CONCHA LABS OR ITS AFFILIATES, OR ANY PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES, BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR PUNITIVE DAMAGES AND COSTS (INCLUDING, WITHOUT LIMITATION, HEALTH PROBLEMS, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, LOST PROFITS, LOST REVENUE OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF YOUR ACCESS, USE, MISUSE OR INABILITY TO USE THE CONCHA LABS PROPERTIES, OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR ANY MALWARE OR LINE OR SYSTEM FAILURE. CONCHA LABS RESERVES THE RIGHT TO ALTER THE CONTENT OF THE CONCHA LABS PROPERTIES IN ANY WAY, AT ANY TIME, FOR ANY REASON, WITHOUT PRIOR NOTIFICATION, AND WILL NOT BE LIABLE FOR POSSIBLE CONSEQUENCES OF SUCH CHANGES. THESE LIMITATIONS APPLY EVEN IF CONCHA LABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE OF ACTION WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE TWELVE-MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION. BECAUSE SOME STATES AND COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY THE LAW IN SUCH JURISDICTIONS.

Indemnification

By using the Concha Labs Properties you agree that you will defend, indemnify and hold harmless Concha Labs together with its employees, agents, directors, officers and shareholders, from and against all the liabilities, claims, damages and expenses (including reasonable attorneys' fees and costs) arising out of (i) your use of the Concha Labs Properties, (ii) your breach or alleged breach of these Terms (including but not limited to any breach of your representations and warranties set forth herein), (iii) your violation or alleged violation of applicable laws or regulations or third party rights, and (iv) any negligent acts, omissions, or willful misconduct by you. Concha Labs reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and, in such case, you shall agree to cooperate with Concha Labs' defense of such claim. You agree not to settle any matter without the prior written consent of Concha Labs. Concha Labs will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

Disclaimer Of Warranties

NEITHER CONCHA LABS NOR ITS EMPLOYEES, AGENTS, SUPPLIERS, THIRD PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE WARRANT THAT THE CONCHA LABS PROPERTIES OPERATION WILL BE ACCURATE, RELIABLE, UNINTERRUPTED OR ERROR-FREE. WITHOUT LIMITING THE FOREGOING, EVERYTHING ON THE SITE IS PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, COVERING THE PRODUCTS AVAILABLE ON THE SITE AND THE ACCURACY OF THE INFORMATION CONTAINED WITHIN YOUR ACCOUNT OR WITHIN THE SITE. CONCHA LABS MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF CONTENT, SOFTWARE TEXT, GRAPHICS, AND LINKS, OR ABOUT RESULTS TO BE OBTAINED FROM USING CONCHA LABS PROPERTIES.

YOU AGREE THAT YOUR USE OF THE CONCHA LABS PROPERTIES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, AND WITH THE EXCEPTION OF ANY EXPRESS WARRANTY EXPLICITLY PROVIDED AND PURCHASED WITH A DEVICE, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE CONCHA LABS PROPERTIES AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONCHA LABS PROPERTIES OR THE CONTENT OF ANY WEBSITES LINKED THERETO AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE CONCHA LABS PROPERTIES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS OR SYSTEMS AND/OR ANY AND ALL PERSONAL AND/ OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE CONCHA LABS PROPERTIES, (V) ANY BUGS, VIRUSES, TROJAN HORSES, MALWARE OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, AND/OR (VI) ANY

ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE CONCHA LABS PROPERTIES. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE CONCHA LABS PROPERTIES, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTY PROVIDERS OF PRODUCTS OR SERVICES.

If your use of Concha Labs Properties results in the need for servicing or replacing property, material, equipment or data, Concha Labs is not responsible for those costs. No agent or representative has the authority to create any warranty regarding the Site on behalf of Concha Labs. Concha Labs reserves the right to change or discontinue at any time any aspect or feature of the Site. Concha Labs does not assume any liability for the contents of any material provided on the Site. Reliance on any information presented on the Site is at your own risk. Concha Labs assumes no liability for or relating to the delay, failure, interruption or corruption of any data or other information transmitted in connection with use of the Concha Labs Properties.

Changes

These Terms are subject to change by Concha Labs in its sole discretion at any time and from time-to-time. When changes are made, Concha Labs will make a new copy of the Terms available on the Site. We will also update the “Last Updated” date at the top of these Terms. Such new Terms shall become effective immediately as of the date of publication to the Site. PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT TERMS.

Site Management

We reserve the right to monitor the Concha Labs Properties for violations of our Terms of Use and to make any changes in our sole discretion without limitation as we deem fit. We may limit, refuse, or restrict access to, limit the availability of, or disable any feature or aspect of the Concha Labs Properties without prior notice, limitation, or liability, and otherwise manage the Concha Labs Properties in a manner designed to protect our right and facilitate proper functioning of the Concha Labs Properties.

United States Only

Concha Labs controls and operates the Concha Labs Properties from its headquarters in the United States of America and directs its Services specifically to individuals located in the United States of America. Concha Labs does not provide goods or Services to individuals not located in the United States of America, nor does Concha Labs collect information from or support Concha Labs Properties on behalf of individuals residing outside of the United States of America. The Concha Labs Properties and information available on or via the Concha Labs Properties may not be appropriate or available for use in other locations. If you use the Concha Labs Properties outside the United States of America, you are responsible for following applicable local laws.

Feedback

You agree that submission of any questions, comments, reviews, ideas, suggestions, documents, or proposals to Concha Labs (“Feedback”) is at your own risk, and that Concha Labs has no obligations (including, without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that all Feedback is original to you, and you have all rights necessary to submit the Feedback. In consideration of the rights to use the Service granted herein, you hereby grant to Concha Labs a fully paid, royalty-free, perpetual, irrevocable, worldwide, 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 it deems appropriate, any and all Feedback, without acknowledgment or compensation to you. Concha Labs will treat any Feedback you provide to Concha Labs as non-confidential and non-proprietary. You hereby waive any and all rights to such Feedback, and you agree there shall be no recourse for alleged or actual infringement or misappropriation of any proprietary rights in your Feedback.

Term And Termination

Subject to this Section, these Terms will remain in full force and effect while you use the Concha Labs Properties. We may suspend or terminate your rights to use the Concha Labs Properties (including your Member Account) at any time, and from time-to-time, for any reason in our sole discretion, including for any use of the Concha Labs Properties in violation of these Terms. Upon termination of your rights under these Terms, your Member Account and right to access and use the Concha Labs Properties will terminate immediately. We will not have any liability whatsoever to you for any termination of your rights to use the Concha Labs Properties, including for termination of your Member Account. In addition to terminating your Member Account, we reserve the right to take appropriate civil, criminal, or legal action against you in our sole discretion. You may cancel your Member Account at any time by contacting us. Even after your rights under these Terms are terminated, all provisions of these Terms which by their nature should survive, will survive, including, without limitation, ownership provisions, indemnification, warranty disclaimers, and limitations of liability.

Copyrights

Concha Labs retains full copyright ownership, rights and protection in all material contained on Concha Labs Properties (including all software code). Except as otherwise expressly provided in these Terms of Use, you may not copy, distribute, transmit, display, perform, reproduce, publish, license, rewrite, create derivative works from, transfer, or sell any material contained on the Concha Labs Properties without the prior consent of the copyright owner. You may, however, make single copies of materials displayed on the Concha Labs Properties for your own personal and noncommercial use only, provided any copies include the copyright and other notices displayed with the materials on the Concha Labs Properties. You may not distribute such copies to others, whether or not for a charge or other consideration, without prior written permission from Concha Labs or the copyright owner of the copied material.

Trademarks

All rights in the product names, company names, trademarks, service marks, slogans, logos, product packaging and designs (“The Concha Labs Marks”) of all Concha Labs’ or third-party products or services, whether or not appearing in large print or with the trademark symbol, belong exclusively to Concha Labs or their respective owners, and are protected from reproduction, imitation, dilution or confusing or misleading uses under national and international trademark and copyright laws. You may not use the Concha Labs Marks without written authorization from Concha Labs and by using the Concha Labs Properties, you acknowledge that the Concha Labs Marks are valid trademarks. Third party trademarks used on the Concha Labs Properties are the property of their respective owners.

Arbitration Agreement; Class Waiver; Waiver of Trial by Jury.

Please read this Arbitration Agreement carefully. It is part of your contract with Concha Labs and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with these Terms and any applicable supplemental terms or the use of the Services that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this arbitration agreement. This arbitration agreement applies to you and Concha Labs, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized and unauthorized users or beneficiaries of the Services provided pursuant to these Terms.

Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written notice of dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Concha Labs should be sent to: 839 Mitten Road, Suite 100, Burlingame, CA 94010. After the Notice is received, you and Concha Labs may attempt to resolve the claim or dispute informally. If you and Concha Labs do not resolve the claim or dispute within thirty (30) calendar days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including, but not limited to, the method of initiating and demanding arbitration, except to the extent such rules are in conflict with these Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (USD $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (USD $10,000.00) or more, the right to a hearing will be determined by the arbitration rules. Any hearing will be held in Burlingame, California. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that Concha Labs made to you prior to the initiation of arbitration, Concha Labs will pay you the greater of the award or $900. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.

Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online, or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.

Time Limits. If you or Concha Labs pursue arbitration, the arbitration action must be initiated and demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.

Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Concha Labs, and the dispute 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 AAA Rules, and these Terms. 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 Concha Labs.

Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under these Terms. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Concha Labs in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND CONCHA LABS WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.

Confidentiality. All aspects of the arbitration proceeding, including, but not limited to, the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This section shall not prevent a party from submitting to a court of law any information necessary to enforce these Terms, to enforce an arbitration award, or to seek injunctive or equitable relief.

Severability. If any part or parts of this arbitration agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of this arbitration agreement and these Terms shall continue in full force and effect.

Right to Waive. Any or all of the rights and limitations set forth in this arbitration agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this arbitration agreement or these Terms.

Survival of Agreement. This arbitration agreement will survive the termination of your relationship with Concha Labs.

Small Claims Court. Notwithstanding the foregoing, either you or Concha Labs may bring an individual action in small claims court.

Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek and obtain emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this arbitration agreement.

Claims Not Subject To Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement.

Courts. In any circumstances where the foregoing Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Burlingame, California for such purpose.

General

These Terms constitute the entire and exclusive understanding and agreement between Concha Labs and you regarding the Concha Labs Properties, and these Terms, as supplemented by the Privacy Policy and Warranty Page, supersede and replace any and all prior oral or written understandings or agreements between Concha Labs and you regarding the Concha Labs Properties. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. The section titles in these Terms are for convenience only and have no legal or contractual effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Concha Labs’s prior written consent; however, Concha Labs may freely assign or transfer these Terms without restriction. For contractual purposes, you (i) consent to receive communications from Concha Labs in an electronic form, and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Concha Labs provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing. Concha Labs’ failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Concha Labs. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The U.N. Convention of Contracts for the International Sale of Goods is expressly excluded from any interpretation of these Terms.

Export. The Concha Labs Properties may be subject to the export control laws of the United States and other countries and may be subject to import regulations in other countries. You agree not to export, re-export, or transfer, directly or indirectly, any technical data acquired from Concha Labs, or any products utilizing such data, in violation of the export laws or regulations of the United States or other countries.

California Residents. In accordance with California Civil Code §1789.3, if you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

Comments And Questions

If you have any questions, complaints or claims with respect to the Concha Labs Properties, please contact us. We will do our best to address your concerns.

Contact Information:

Address:

2261 Market Street #4250

San Francisco, CA 94114

Email: care@conchalabs.com