Effective as of: March 25, 2021
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.
THE TERMS INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. THE 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 (1) you have read, understand and accept (on behalf of yourself or the entity that you represent) the Terms; (2) you are of legal age to form a binding contract with Concha Labs; and (3) you have the right, authority, and capacity to enter into these Terms (on behalf of yourself or the entity that you represent). Additionally, you understand that Concha Labs Hearing Aids* and all applications are in the 510(K) submission process and therefore include the following warning: CAUTION – Investigational device. Limited by Federal (or United States) law to investigational use. If you do not agree with all of the provisions of these Terms, do not access and/or use the Concha Labs Properties.
Use Of The Concha Labs Properties
Subject to the terms and conditions herein and in consideration of the rights to use the Service granted by Concha Labs to You, Concha Labs grants you a personal, revocable, limited, non-transferable, non-sublicenseable license to use the App on either (1) any iPhone, iPad, or iPod Touch that you own or control, or (2) any Android-enabled mobile device that you own or control. 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: (a) 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; (b) 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; (c) you shall not use any metatags or other “hidden text” using Concha Labs’ 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 Concha Labs Properties 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 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); (f) you shall not access the Concha Labs Properties in order to build a similar or competitive website, application, or service; (g) 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; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Concha Labs Properties. 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 use of the Concha Labs Properties terminates the licenses granted by Concha Labs pursuant to the Terms.
Third Party Links
No Professional Advice
This Service is not designed to provide professional diagnosis or treatment services to you or any other individual. Through this Service 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 this Service, or through links to other web sites, or by employees, agents or representatives of Concha Labs on or off this Service, 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 is not a medical diagnosis of your hearing ability. Concha Labs is not liable or responsible for any advice, course of treatment, diagnosis or any other information or product you obtain through this Service. IF YOU BELIEVE YOU HAVE A MEDICAL EMERGENCY, YOU SHOULD IMMEDIATELY CALL 911 OR YOUR PHYSICIAN. Never rely on information on this Service in place of seeking professional medical advice. Never disregard professional medical advice or delay in seeking it because of something you have read on this Service. You should also ask your physician or other healthcare provider to assist you in interpreting any information on this Service or on any linked web sites, or in applying the information to your individual case. Medical information changes constantly. Therefore the information on this Service or on any linked web sites should not be considered current, complete or exhaustive, nor should you rely on such information to recommend a course of treatment for you or any other individual. 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 this Service 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 this service, be liable for any direct, indirect, special or punitive damages and costs (including, without limitation, health problems, incidental and consequential damages, lost profits 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 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. 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 the law.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Concha Labs and you acknowledge that 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 application store terms of service, the more restrictive or conflicting App Store terms of service or Usage Terms shall apply, as applicable.
You represent and warrant that (1) 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 (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
Developer Name and Address
Concha Labs’s contact information for any questions, complaints, or claims with respect to the future App is set forth below.
Third Party Terms of Agreement.
You must comply with applicable third party terms of agreement when using the App, if any.
Third Party Beneficiary
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.
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 (a) your use of the Concha Labs Properties, (b) your breach or alleged breach of these Terms, (c) your violation or alleged violation of applicable laws or regulations or third party rights, and (d) 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.
When you visit our Site, the server housing the pages automatically generates a “session log.” We use session logs to help us determine how people travel through our Site. In this way, we can structure our pages so that the information most frequently visited is easier to find. By tracking page visits, we can also determine if the information we’re providing is being used. The only data gathered is the Internet Protocol (IP) address from which you came (which contains no personal information), the web site that referred you, the pages you visited and the date and time of those visits.
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.
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.
You acknowledge that, in connection with Concha Labs Properties, information will be transmitted over local exchange, interexchange and Internet backbone carrier lines and through routers, switches and other devices owned, maintained and serviced by third party local exchange and long distance carriers, utilities, Internet service providers and others, all of which are beyond the control and jurisdiction of Concha Labs. Accordingly, 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.
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 “Effective as of” date at the top of these Terms. If we make any material changes to these Terms and you have a Member Account, we will send an e-mail to you at the last e-mail address you provided to us pursuant to these Terms. Any changes to these Terms will be effective immediately for new users of the Concha Labs Properties and will be effective thirty (30) calendar days after posting notice of such changes on the Site for existing users. Concha Labs may require you to provide consent to the updated Terms in a specified manner before further use of the Concha Labs Properties is permitted. If you do not agree to any changes after receiving a notice of such changes, you must stop using the Concha Labs Properties immediately and you are no longer authorized to use the Concha Labs Properties. Otherwise, your continued use of the Concha Labs Properties constitutes your acceptance of such changes. PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT TERMS.
United States Only
Concha Labs controls and operates the Concha Labs Properties from its headquarters in the United States of America and other jurisdictions. 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.
You agree that submission of any ideas, suggestions, documents, or proposals to Concha Labs through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”), which exist now or which may exist in the future, 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 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, 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 it deems appropriate, any and all Feedback, and to sublicense the foregoing rights. Concha Labs will treat any Feedback you provide to Concha Labs as non-confidential and non-proprietary.
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. 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.
Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Concha Labs and you regarding the Concha Labs Properties, and these Terms 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. The word “including” means “including without limitation.” Your relationship to Concha Labs is that of an independent contractor, and neither party is an agent or partner of the other.
You may not assign or transfer these Terms, by operation of law or otherwise, without Concha Labs’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and void. Concha Labs may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
The communications between you and Concha Labs use electronic means. For contractual purposes, you (a) consent to receive communications from Concha Labs in an electronic form, and (b) 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. The foregoing does not affect your non-waivable rights.
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.
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.
None of the material contained on the Concha Labs Properties may be reverse-engineered, disassembled, decompiled, transcribed, stored in a retrieval system, translated into any language or computer language, retransmitted in any form or by any means (electronic, mechanical, photo reproduction, recordation or otherwise), resold or redistributed without the prior written consent of Concha Labs.
All rights in the product names, company names, trade marks, 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 Service 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 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 a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. 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 $2,500. 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.
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.
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.
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.
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.
These Terms and any action related thereto 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 another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
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.
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.
You hereby release and forever discharge Concha Labs (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present, and future dispute, claim, controversy, demand, right, obligation, liability, action, and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Concha Labs Properties (including any interactions with, or act or omission of, other users). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
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.
2261 Market Street #4250
San Francisco, CA 94114