Effective Date: August 1, 2019
THE SERVICES ARE NOT FOR USE IN MEDICAL EMERGENCIES OR OTHER URGENT SITUATIONS. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.
NOTE THAT SECTION 19 OF THESE TERMS CONTAINS A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS AND LIMITS THE FORUM AND/OR REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
BY CLICKING “I CONSENT” OR BY ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL OF THE TERMS INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS, INCLUDING THE MANDATORY ARBITRATION AND CLASS ACTION WAIVER IN SECTION 19, YOU MAY NOT ACCESS OR USE THE SERVICES.
SonarMD reserves the right to revise these Terms from time to time in our sole discretion. If we make changes to these Terms, we will provide notice of such changes, such as by sending an email notification, providing notice through the Services or updating the “Effective Date” date at the beginning of these Terms. By continuing to access or use the Services, you confirm your acceptance of the revised Terms and all of the terms incorporated herein by reference. We encourage you to review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Services. If you do not agree to the revised Terms, you may not access or use the Services.
SonarMD provides a technology platform that helps Providers and their Patients manage certain gastrointestinal diseases via the Services.
2. Secondary Tool; Not a Healthcare Provider; No Medical Advice
Notice to Patients: SonarMD is not a healthcare provider, and the Services do not include the provision of medical care, health care services, or other professional services by SonarMD. Always directly contact your Provider or other qualified healthcare provider with any questions regarding your personal health or medical conditions. If you have or suspect that you have a medical problem or condition, please contact a qualified healthcare professional or 9-1-1 immediately. If any medical advice is provided to you by a Provider through the Services, such medical advice is not provided by SonarMD but is provided by your Provider.
The Services are not intended to provide any healthcare service, as the Services are an informational and communication resource designed to assist healthcare practitioners in caring for their patients and/or to serve end-users viewing this service as a supplement to, and not a substitute for, the expertise, skill, knowledge and judgment of healthcare practitioners. Patients should not and must not rely on the Services as their primary tool for communicating, gathering, storing, updating, sharing or assessing health information including changes to a patient’s health status. The Services might not function as intended. Individuals using the Services assume full responsibility for the use of the Services and agree that we are not responsible or liable for any claim, loss, or damage arising from the use of the Services.
While the Services may enable Providers to communicate with their Patients, we are not responsible for monitoring such information and communications, and we are not a party to transactions that may occur between Patients and their Providers. In addition, we are not responsible for and we expressly disclaim all liability that may result from information made available by Patients or Providers, and the conduct of Patients and Providers, whether online or offline. SonarMD does not sponsor, endorse, recommend or approve of any Provider, nor do we make any representations or warranties about the quality, timing or legality of the products or services they provide. Additionally, we cannot and do not represent or warrant that any Provider is licensed, qualified, insured or capable of performing any product or service, and we make no representations or warranties about the suitability, reliability or accuracy of the products and services they provide.
The Services are not targeted toward or intended for use by anyone under the age of 13. By accessing or using the Services, you represent and warrant that you (a) are 13 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the Services, or engaged in any activity that could result in suspension or removal from the Services, and (d) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party.
5. Registration, Accounts and Communication Preferences
To access and use certain areas or features of the Services, you may need to register for a SonarMD account (“Account”). Your Provider will provide you with a unique PIN or a text message with a link to a login page. By creating an Account, you agree to (a) provide accurate, current and complete Account information, (b) maintain and promptly update, as necessary, your Account information, (c) maintain the security of your Account credentials, (d) be responsible for the acts or omissions of any third party who has authority to access or use the Services on your behalf, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Services or your Account. You further understand and agree that SonarMD may take actions we deem reasonably necessary to prevent, respond to, pursue or remedy suspected or actual fraud and abuse, including without limitation, termination or suspension of your Account.
By creating an Account, you also consent to receive electronic communications from SonarMD (e.g., via email or by posting notices to the Services). These communications may include notices about your Account (e.g., password changes and other information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy.
By providing your mobile phone number to us through the Services, you consent to receive calls or text messages at any such phone number sent by or on behalf of SonarMD, including autodialed calls and/or text messages, for operational or informational purposes, such as to verify your Account by sending a one-time code to the phone number associated with your Account. It is your responsibility to keep your account information, including your phone number, updated. Standard message and data rates applied by your mobile phone carrier may apply to the text messages we send you. Please contact your mobile phone carrier for details.
6. Responsibility for Your Care; Provider Credentials
Each Patient’s health care is solely the responsibility of themselves and their respective Provider(s). Providers are the exclusive providers of any health advice and services provided through the Services. SonarMD supports Providers by providing them with certain rights to access and use the Services. However, under the Services, Providers have the exclusive control and responsibility for the delivery of health care services.
Each Provider, and not SonarMD, is responsible for, and represents and warrants that it obtained the informed consent from his or her Patients to any diagnosis or treatment, including without limitation, consent to use telehealth in the course of any services provided through the Services, to the extent such consent is required by any applicable law or agreement.
SonarMD is not responsible for credentialing Providers, makes no representation regarding the accuracy of Providers’ credentials or qualifications, and expressly disclaims any liability for fraudulent credentials or claims by Providers. We recommend that each Patient separately confirm that his or her Provider is qualified and in good standing with his or her respective licensing board(s).
7. User Conduct
You agree that you will not violate any law, contract, intellectual property or other third party right or commit a tort, and that you are solely responsible for your conduct, while accessing or using the Services. You agree that you will abide by these Terms and will not:
If we determine that you have violated our terms or policies, we may take action against your account to protect our community and services, including by suspending access to your account, disabling it or terminating it. We may also suspend, disable or terminate your account if you create risk or legal exposure for us or when we are permitted or required to do so by law.
8. User Content
The Services may include interactive features and areas that allow users to share or store content, including, but not limited to, photos, videos, text and or other materials (collectively, “User Content”). If you decide to share your User Content with others through the Services, you understand that this User Content will be viewable by Providers in accordance with the privacy settings you establish. You agree that you are solely responsible for your User Content and for your use of any interactive features and areas of the Services.
By using the interactive features and areas of the Services, you further agree not to create, post, share or store any of the following:
Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Services at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Services at your sole cost and expense.
9. Rights in User Content
If you share User Content, you retain your ownership of your intellectual property rights. We do not claim any ownership interest in your User Content. However, by sharing User Content to the Services or to our pages or feeds on third party social media platforms (e.g., SonarMD’s Facebook page, Instagram page or Twitter feed), you hereby grant SonarMD a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes.
By uploading, posting or submitting User Content to SonarMD through the Services or through our pages or feeds on third party social media platforms, you represent and warrant that (a) such User Content is nonconfidential, (b) you own and control all of the rights to the User Content or you otherwise have all necessary rights to post such User Content, (c) you authorize SonarMD to use such User Content for the purposes described in these Terms, (d) the User Content is accurate and not misleading or harmful in any manner, and (e) the User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, regulation or third party right.
10. License to Access and Use Our Services and Content
Unless otherwise indicated in writing by us, the Services and all content and other materials contained therein, including, without limitation, the SonarMD logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of SonarMD or our licensors or users, as applicable, and are protected by U.S. and international copyright laws.
You are hereby granted a limited, nonexclusive, nontransferable, nonsublicensable license to access and use the Services and Content. However, such license is subject to these Terms and does not include any right to (a) sell, resell or use commercially the Services or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Services or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Services or Content, except as expressly permitted by us, and (f) use the Services or Content other than for their intended purposes. Any use of the Services or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of SonarMD or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.
Notwithstanding anything to the contrary in these Terms, the Services and Content may include software components provided by SonarMD or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
“SonarMD”, the SonarMD logo and any other SonarMD product or service names, logos or slogans that may appear on the Services are trademarks of SonarMD and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “SonarMD” or any other name, trademark or product or service name of SonarMD without our prior written permission. In addition, the look and feel of the Services, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of SonarMD and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product or service names and company names or logos mentioned on the Services are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by SonarMD.
12. Third Party Links
SonarMD makes no claim or representation regarding the quality, content, nature or reliability of third party websites accessible by hyperlink from the Services or of websites linking to the Services. SonarMD is not responsible for the privacy practices or the content of any off-site pages or any other sites linked to the Services, whether or not they are affiliated with SonarMD. Such linked sites are for your convenience only and you access them at your own risk. SonarMD makes no representations or warranties as to the accuracy or functioning of any such link. That another web site is linked to our Services does not constitute endorsement by SonarMD of the owner of the other site, the content of its site, or its products or services. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Services.
13. Third Party Content
We may display content, advertisements and promotions from third parties through the Services (collectively, “Third Party Content”). We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties.
Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about SonarMD or the Services (collectively, “Feedback”). Feedback is nonconfidential and shall become the sole property of SonarMD. SonarMD shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless SonarMD, and our respective past, present and future employees, officers, directors, contractors, consultants, equityholders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “SonarMD Parties”), from and against all actual or alleged SonarMD Party or third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses and costs of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) any use or misuse of the Services or Content by you or any third party you authorize to access or use such Services or Content, (b) any User Content you create, post, share or store on or through the Services or our pages or feeds on third party social media platforms, (c) any Feedback you provide, (d) your violation of these Terms, and (e) your violation of the rights of another.
You agree to promptly notify SonarMD of any third party Claims, cooperate with the SonarMD Parties in defending such Claims and pay all of SonarMD’s fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). You further agree that the SonarMD Parties shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and SonarMD.
SonarMD is not itself a provider of health care services, and any healthcare providers that you interact with via the Services are not acting as employees or agents of SonarMD. SonarMD is not a medical provider or telehealth service as such terms may be defined under state or federal laws. While we enable Patients and Providers to communicate with one another, we are not responsible for monitoring such information and communications, and we are not a party to transactions or interactions that may occur between Patients and Providers, whether online or offline. In addition, we are not responsible for and we expressly disclaim all liability that may result from information made available by Users and Providers and the conduct of Patients and Providers, whether online or offline. SonarMD does not sponsor, endorse, recommend or approve of any Providers. Additionally, we cannot and do not represent or warrant that any Provider is licensed, qualified, insured or capable of performing any product or service, and we make no representations or warranties about the expertise, professional qualifications, or quality of work of any Provider, or the suitability, reliability or accuracy of the products and services they provide.
YOUR USE OF THE SERVICES AND CONTENT IS AT YOUR SOLE DISCRETION AND RISK. THE SERVICES AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. SONARMD DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SERVICES AND CONTENT, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE SERVICES WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS.
We reserve the right to change any and all Content and to modify, suspend or stop providing access to the Services (or any features or functionality of the Services) at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier, vendor or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by us.
17. Limitations on SonarMD’s Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE SONARMD PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE SERVICES OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, THIRD PARTY CONTENT AND LINKS TO THIRD PARTY SITES), OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM ANY SONARMD PARTY, OR FROM EVENTS BEYOND THE SONARMD PARTIES’ REASONABLE CONTROL, SUCH AS SERVICE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE SONARMD PARTIES’ RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE SONARMD PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO ACCESS OR USE OF THE SERVICES OR CONTENT, EXCEED THE GREATER OF $100 OR THE AMOUNT YOU PAID TO US IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE THE SONARMD PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY.
In no event will the SonarMD Parties be liable for the disclosure of your confidential information by a Provider from whom you receive health care services. SonarMD is not liable to any person or user for any harm caused by the negligence or misconduct of a Provider providing health care services.
THE LIMITATIONS SET FORTH IN THIS SECTION 17 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE DIRECTLY AND PROXIMATELY CAUSED BY OUR FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL, WILLFUL, MALICIOUS OR RECKLESS MISCONDUCT.
To the fullest extent permitted by applicable law, you, on behalf of your heirs, executors, administrators, legal and personal representatives, hereby release, waive, acquit and forever discharge the SonarMD Parties from and against, and covenant not to sue any such SonarMD Party for, all claims you have or may have arising out of or in any way related to these Terms. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, 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.”
19. Dispute Resolution; Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH SONARMD AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US, INCLUDING A CLASS ACTION WAIVER.
19.1. Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and SonarMD agree (a) to waive your and SonarMD’s respective rights to have any and all Disputes arising from or related to these Terms, or the Services or Content, resolved in a court, and (b) to waive your and SonarMD’s respective rights to a jury trial. Instead, you and SonarMD agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
19.2. No Class Arbitrations, Class Actions or Representative Actions
You and SonarMD agree that any Dispute arising out of or related to these Terms or the Services, or Content is personal to you and SonarMD and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and SonarMD agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and SonarMD agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
19.3. Federal Arbitration Act
You and SonarMD agree that these Terms affect interstate commerce and that the enforceability of this Section 19 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
19.4. Notice; Informal Dispute Resolution
You and SonarMD agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to SonarMD shall be sent by certified mail or courier to 350 N. Orleans, Suite 9000, Chicago, IL 60654. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 3 and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and SonarMD cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or SonarMD may, as appropriate and in accordance with this Section 19, commence an arbitration proceeding or, to the extent specifically provided for in Section 19.1, file a claim in court.
EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND SONARMD AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR SONARMD WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND SONARMD WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and SonarMD agree that (a) any arbitration will occur in the State of Illinois County of Cook, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”), which are hereby incorporated by reference, and (c) that the state or federal courts of the State of Illinois and the United States, respectively, sitting in the State of Illinois, County of Cook, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
19.6. Authority of Arbitrator
As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. 11
19.7. Rules of JAMS
The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of JAMS, or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
If any term, clause or provision of this Section 19 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 19 will remain valid and enforceable. Further, the waivers set forth in Section 19.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
19.9. Opt-Out Right
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 19 by writing to: Devin Gross, CEO, SonarMD, 350 N Orleans, Suite 9000, Chicago, IL 60654. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 20.
20. Governing Law and Venue
These Terms, and your access to and use of the Services shall be governed by and construed and enforced in accordance with the laws of the State of Illinois without regard to conflict of law rules or principles (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved on an individual basis in the state or federal courts of the State of Illinois and the United States, respectively, sitting in the State of Illinois County of Cook.
21. Modifications to the Services
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Services (or any features or parts thereof) at any time.
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Services at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
The following sections will survive the expiration or termination of these Terms and the termination of your Account: all defined terms and Sections 2, 3, 5, 6 (as applicable), and 7 through 26.
These Terms, and any other terms and policies incorporated herein, constitute the entire agreement between you and SonarMD relating to your access to and use of the Services. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of SonarMD. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and SonarMD’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.
26. Apple Device Additional Terms
If you access an App via a mobile device or tablet branded by Apple, Inc. (“Apple”) and running Apple’s iOS (an “Apple Device”), the following terms (“Apple Terms”) are hereby made part of these Terms:
If these Apple Terms conflict with any other provision of these Terms, then the Apple Terms control with respect to access and use of the Digital Services via an Apple Device. Apple is not a party to these Terms and does not own and is not responsible for any App you access via your Apple Device (“iOS App”) and the content thereof. The Apple App Store Terms of Service (the “App Store Terms of Service”) control to the extent of any conflict with these Terms with respect to an iOS App. The license granted to use an iOS App is limited to a non-transferable license to use the App on an Apple Device that you own or control and as permitted by the usage rules set forth in the App Store Terms of Service. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to any iOS App. In the event of any failure of the iOS App to conform to any applicable warranty provided by SonarMD in these Terms, you may notify Apple and Apple will refund the purchase price for the iOS App (if any). To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS App and will not be responsible for any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty. Apple is not responsible for addressing your or any third-party claims relating to an iOS App and/or use of an iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that an iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. It is not the intent of these Terms to limit SonarMD’s liability beyond what is permitted by applicable law. In the event of any third party claim that an iOS App or your possession and use (in accordance with these Terms) of an iOS App infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. In addition to the requirements of Section 2, 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 13
prohibited or restricted parties. Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms with respect to any iOS App, and that, upon your acceptance of these Terms, Apple has the right (and deemed to have accepted the right) to enforce the Terms against you with respect to the iOS App as a third-party beneficiary thereof. Please direct any questions, complaints or claims with respect to an iOS App to SonarMD at the contact information provided below.
26. Patient Additional Terms