SOUNDABLE HEALTH – PHYSICIAN PORTAL TERMS OF USE

Effective Date: February 14, 2022

PLEASE CAREFULLY READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THE SOUNDABLE HEALTH PHYSICIAN PORTAL TERMS OF USE (“SOUNDABLE HEALTH PHYSICIAN PORTAL TERMS”).

These Soundable Health Physician Portal Terms create a binding legal agreement between you and [Soundable Health, Inc.] (“Soundable Health”) and govern your use of the Soundable Physician Portal made available by Soundable Health (the “Physician Portal”).  The information provided on the Physician Portal reflects results that are collected by third-party users of Soundable Health applications who have agreed to provide you with access to the Physician Portal (the “Patients”). 

THE PHYSICIAN PORTAL IS NOT A SUBSTITUTE FOR CLINICAL DIAGNOSIS BY A PHYSICIAN. SOUNDABLE HEALTH DOES NOT GUARANTEE THE CLINICAL ACCURACY OR INTERPRETATION OF ANY RESULTS PROVIDED BY THE PHYSICIAN PORTAL.

PLEASE CAREFULLY REVIEW THESE SOUNDABLE HEALTH PHYSICIAN PORTAL TERMS OF USE AND THE SOUNDABLE HEALTH PHYSICIAN PORTAL PRIVACY POLICY (AVAILABLE AT [PRIVACY POLICY]) BEFORE USING THE PHYSICIAN PORTAL. BY USING THE PHYSICIAN PORTAL, YOU BOTH ACCEPT AND AGREE TO BE BOUND BY THESE SOUNDABLE HEALTH PHYSICIAN PORTAL TERMS OF USE (THESE “TERMS”) AND ACKNOWLEDGE THAT YOU HAVE REVIEWED THE SOUNDABLE HEALTH PHYSICIAN PORTAL PRIVACY POLICY. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, YOU MAY NOT USE THE PHYSICIAN PORTAL. PLEASE NOTE THAT SECTION 11 OF THESE TERMS CONTAINS A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS WHEN RESOLVING DISPUTES WITH SOUNDABLE HEALTH AND/OR ITS VENDORS.

You affirm that you (i) are at least 18 years of age, (ii) are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms, and (iii) reside in, and will use the Physician Portal only to monitor patients who reside in, the United States or South Korea. 

Soundable Health may change any of the terms contained herein or modify the Physician Portal at any time, and you accept any changes made to these Terms by continuing to use the Physician Portal after Soundable Health posts notice of the changes on the Physician Portal or by email. Soundable Health may immediately terminate this contract with you (including your access to the Physician Portal) at any time, including but not limited to, if you fail to comply with any provision of these Terms.

1) Ownership.

You acknowledge and agree that Soundable Health and/or Soundable Health’s technical, content and service providers (“Vendors”) own all right, title and interest in and to the Physician Portal, including all intellectual property rights therein and thereto (including, but not limited to, any and all copyrights, patents, patent applications, trade secrets, trademarks and other intangible rights). Except for materials and content that you have submitted via the Physician Portal, you may not publish, reproduce, distribute, display, perform, edit, adapt, modify, or otherwise exploit any part of the Physician Portal without Soundable Health’s written consent. You will not earn or acquire any ownership rights in any copyrights, patents, trade secrets, trademarks or other intellectual property rights on account of these Terms or any access to or use of the Physician Portal. You agree and understand that Soundable Health is not obligated to provide you with access to the Physician Portal. You agree that all content provided through the Physician Portal is owned by Soundable Health, its Vendors, Patients, and/or other third parties and that you will have no ownership rights in such content.

2) License Grand and Restrictions.
3) Additional information about the Physician Portal.

The Physician Portal may contain links to third party content and integrations with third party platforms. Soundable Health does not control, endorse, sponsor, recommend, or otherwise accept responsibility for such third party content and integrations. Use of any linked third party content and integrations is at your own risk. All rights not expressly granted to you with respect to the Physician Portal are reserved by Soundable Health and its Vendors. When you access the Physician Portal through a mobile network, your network or roaming provider’s messaging, data and other rates and fees will apply.

4) Accounts, Passwords and Security.

You are responsible for taking reasonable steps to maintain the confidentiality of your account, including your username and password, and you are responsible for all activities under your account that you can reasonably control. You agree to promptly notify Soundable Health of any unauthorized use of your username, password or other account information, or of any other actual or reasonably suspected breach of security that you become aware of involving your account or the Physician Portal. Soundable Health will not be liable to you for any loss you may incur as a result of someone else using your username, password or account with or without your knowledge. You may be held liable for losses incurred by Soundable Health, Patients, or others due to any unauthorized use of your username, password or account. You may not use anyone else’s account at any time without the permission of the account holder.

5) Fees.

You may be required to pay fees to Soundable Health in order to use certain functionality of the Physician Portal (“Service Fees”). You are responsible for paying any applicable Service Fees listed on the Physician Portal at the time of purchase. If such Service Fees are specified to be recurring on the Physician Portal, you agree that Soundable Health may charge such Service Fees on a periodic basis to the payment method you specify at the time of your initial purchase (your “Payment Method”). By using a Payment Method to pay Service Fees, you are expressly agreeing that Soundable Health is authorized to charge to the Payment Method the Service Fees and any other fees for additional services you may purchase, together with any applicable taxes. You acknowledge and agree that any applicable fees for the Physician Portal or other services may increase at any time. Additional fees may apply for new features or additions to the Physician Portal that may be made available from time to time, in which case Soundable Health will provide you with notice in advance of charging the additional fees. In the event Soundable Health charges additional fees in connection with the Physician Portal, you will have an opportunity to review and accept the additional fees that you will be charged, prior to being charged. You acknowledge and agree that Soundable Health may use third party payment processors to process Service Fees on its behalf, and that Soundable Health will not be held liable for any errors caused by such third party payment processors.

6) Limitations on Use of the Physician Portal.

You may not access or use, or attempt to access or use, the Physician Portal to take any action that could harm Soundable Health, its Vendors, Patients, or any other third party, interfere with the operation of the Physician Portal, or use the Physician Portal in a manner that violates any laws. For example, and without limitation, you may not:

Violations of system or network security may result in civil or criminal liability. Soundable Health may investigate and work with law enforcement authorities to prosecute users who violate these Terms. Soundable Health may suspend or terminate your access to the Physician Portal for any or no reason at any time without notice.

7) Feedback; Communications with You.

a) You agree that any comments, suggestions or feedback you provide regarding your use of the Physician Portal (“Feedback”) will become the exclusive property of Soundable Health, regardless of the form or platform in which it is delivered.  You further agree that Soundable Health and Vendors may use all or part of your Feedback or any derivative thereof in any manner or media without any remuneration, compensation or credit to you. You hereby assign to Soundable Health all right, title and interest to your Feedback, including all copyrights therein.

b) Soundable Health and Vendors may communicate with you about the Physician Portal, including through one or more third party e-mail or survey services, via methods determined by Soundable Health, including through the Physician Portal or contact information you provide as part of the registration process for the Physician Portal.  You consent to receive communications from Soundable Health and/or Vendors that may: (i) solicit Feedback via e-mail, surveys, bug reports, or other methods Soundable Health may determine; (ii) collect additional information regarding issues you report in your Feedback; (iii) notify you of changes to the Physician Portal or these Terms; and (iv) tell you about future Soundable Health programs, products or services. You agree that Soundable Health may share your contact information with Vendors, and, to the extent necessary to enable such communications, with other third parties. 

8) Disclaimer of Warranties, Limitation of Liability, and Indemnity.

a) ANY INFORMATION MADE AVAILABLE THROUGH THE PHYSICIAN PORTAL, WHETHER PROVIDED IN TEXT, AUDIO, VIDEO, GRAPHICAL, OR OTHER FORM (THE “PHYSICIAN PORTAL CONTENT”) IS INTENDED FOR HEALTHCARE AND CLINICAL RESEARCH PROFESSIONALS WITH ADEQUATE MEDICAL EDUCATION AND SKILLS, SUCH AS PHYSICIANS AND OTHER HEALTHCARE PROFESSIONALS WITH A MINIMUM LEVEL OF COMPETENCY WHO WILL RELY ON THEIR OWN CLINICAL JUDGMENT IN MEDICAL DIAGNOSIS, CLINICAL DECISIONS, AND TREATMENT.  

b) THE PHYSICIAN PORTAL CONTENT IS NOT INTENDED AS A SUBSTITUTE FOR YOUR OWN CLINICAL JUDGMENT. YOU SHOULD RELY ON YOUR OWN JUDGMENT, EXPERIENCE, AND INDEPENDENTLY VERIFY THE PHYSICIAN PORTAL CONTENT, WHETHER SHARED BY SOUNDABLE HEALTH OR PATIENTS ON THE PHYSICIAN PORTAL.  

c) THE PHYSICIAN PORTAL CONTENT IS NOT FULLY ACCURATE AND COMPLETE, AND IS NOT DESIGNED TO BE A SUBSTITUTE FOR, (I) CLINICAL EXAMINATION EQUIPMENT, (II) PROFESSIONAL MEDICAL ADVICE, SCREENING, DIAGNOSIS, OR TREATMENT, (III) THE PRACTICE OF MEDICINE, OR (IV) THE PROVISION OF MEDICAL CARE.   SOUNDABLE HEALTH DOES NOT IN ANY WAY GUARANTEE THE ANALYTICAL RESULTS PRESENTED ON THE PHYSICIAN PORTAL.  

d) YOU EXPRESSLY AGREE THAT YOUR USE OF THE PHYSICIAN PORTAL AND RELIANCE OF THE INFORMATION PRESENTED THEREIN IS AT YOUR OWN RISK. THE PHYSICIAN PORTAL IS PROVIDED “AS IS” AND, TO THE FULLEST EXTENT PERMITTED BY LAW, IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, NEITHER SOUNDABLE HEALTH NOR VENDORS MAKE ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, COMPLETENESS, AVAILABILITY, SECURITY AND PRIVACY OF YOUR DATA AND/OR INFORMATION, COMPATIBILITY OR NON-INFRINGEMENT; OR THAT THE ACCESS TO AND USE OF THE PHYSICIAN PORTAL WILL BE UNINTERRUPTED, FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS, ACCURATE, ERROR FREE, OR RELIABLE; OR AS TO THE ACCURACY, CURRENCY, OR COMPLETENESS OF ANY PHYSICIAN PORTAL CONTENT. NEITHER SOUNDABLE HEALTH NOR VENDORS MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY SERVICE PROVIDERS. SOUNDABLE HEALTH IS NOT RESPONSIBLE OR LIABLE FOR ANY DECISIONS YOU MAY MAKE IN RELIANCE ON THE PHYSICIAN PORTAL OR PHYSICIAN PORTAL CONTENT, OR FOR ANY DEFECTS OR ERRORS THAT MAY RESULT FROM YOUR OR A SOUNDABLE PATIENT’S PROVISION OF INCOMPLETE OR INACCURATE INFORMATION TO SOUNDABLE HEALTH OR THE PHYSICIAN PORTAL, YOUR USE OF THE PHYSICIAN PORTAL WITH HARDWARE THAT DOES NOT MEET THE MINIMUM REQUIREMENTS SPECIFIED BY SOUNDABLE HEALTH, OR YOUR USE OF ANY VERSION OF THE PHYSICIAN PORTAL OTHER THAN THE MOST RECENT GENERALLY AVAILABLE RELEASE OF THE PHYSICIAN PORTAL.

e) TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SOUNDABLE HEALTH, VENDORS, OR THEIR AFFILIATES, SUCCESSORS AND ASSIGNS, OR ANY OF THEIR RESPECTIVE INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, THIRD PARTY SERVICE PROVIDERS (INCLUDING THOSE WHO HELP ADMINISTER AND OPERATE THE PHYSICIAN PORTAL), AGENTS, AND SUPPLIERS (COLLECTIVELY, THE “LICENSOR PARTIES”), BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, INCLUDING LOSS OF PROFITS, ARISING OUT OF OR IN ANY WAY RELATED TO THE PHYSICIAN PORTAL, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHER THEORY, EVEN IF THE LICENSOR PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE LICENSOR PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE EXCEED THE GREATER OF THE ACTUAL AMOUNT YOU PAID FOR THE PHYSICIAN PORTAL (IF ANY) AND $100, EXCEPT TO THE EXTENT AN APPLICABLE LAW DOES NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS ARE ESSENTIAL TO THESE TERMS.

f) YOU FURTHER AGREE TO INDEMNIFY AND HOLD HARMLESS THE LICENSOR PARTIES FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, DAMAGES, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS), AND OTHER LOSSES ARISING OUT OF OR IN ANY WAY RELATED TO YOUR BREACH OR ALLEGED BREACH OF THESE SOUNDABLE HEALTH PHYSICIAN PORTAL TERMS, YOUR USE OF THE PHYSICIAN PORTAL, OR YOUR FEEDBACK.  SOUNDABLE HEALTH RESERVES THE RIGHT TO EMPLOY SEPARATE COUNSEL AND ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU. IN SUCH EVENT, YOU SHALL PROVIDE SOUNDABLE HEALTH WITH SUCH COOPERATION AS SOUNDABLE HEALTH REASONABLY REQUESTS.  

9) Notices.

From time to time, Soundable Health (either directly or through a third party service) may communicate with you about the Physician Portal and/or these Terms via e-mail or otherwise through the Physician Portal.  You agree that any such notices, disclosures, and other communications will satisfy Soundable Health’s applicable legal notification requirements.  Notices may include modifications to the terms of these Terms or changes to the Physician Portal.  Soundable Health recommends that you keep a copy of any electronic communications Soundable Health sends to you for your records.

10) Infringement.

Soundable Health encourages you to report material or content that you believe warrants removal from the Physician Portal. In particular, if you believe that any material on the Physician Portal infringes your work or the work of any third party in a manner that constitutes infringement, then you may notify Soundable Health in accordance with this Section 10. To notify Soundable Health of copyright infringement on the Physician Portal, please send Soundable Health a written notice by e-mail tosupport@soundable.health that includes all of the following information:

11) Arbitration.

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT AFFECTS YOUR RIGHTS. BY AGREEING TO BINDING ARBITRATION, YOU WAIVE YOUR RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE YOUR CASE. 

In order to expedite and control the cost of disputes, Soundable Health and you agree that any legal or equitable claim, dispute, action or proceeding arising from or related to your use of the Physician Portal or these Terms (“Dispute”) will be resolved as follows to the fullest extent permitted by law:

a) Notice of Dispute. In the event of a Dispute, you or Soundable Health must give the other a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Dispute, and a proposed solution (a “Notice of Dispute”). You must send any Notice of Dispute by first class U.S. Mail to Soundable Health at 201 Mission Street 12F, San Francisco, California 94105 and also via e-mail to support@soundable.health. Soundable Health will send any Notice of Dispute to you by first class U.S. Mail to your address if Soundable Health has it, or otherwise to your e-mail address. You and Soundable Health will attempt to resolve any Dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. After sixty (60) days, you or Soundable Health may commence arbitration.

b) Mediation, Binding Arbitration and Governing Law. You and Soundable Health shall endeavor to settle any Dispute by mediation under the Mediation Rules of Judicial Arbitration and Mediation Services, Inc. (“JAMS”). The place of mediation shall be San Francisco, California.  Any Dispute which has not been resolved by mediation as provided herein within thirty (30) days after appointment of a mediator or such time period as you or Soundable Health may otherwise agree, shall be finally resolved by binding arbitration as described in this Section 11.  You are giving up the right to litigate (or participate in as a party or class member) all Disputes in court before a judge or jury.  Instead, all Disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the Federal Arbitration Act.  The place of arbitration shall be San Francisco, California.  Any court with jurisdiction over the parties may enforce the arbitrator’s award.  As the Physician Portal and related services are provided in California, to the fullest extent permitted by law, your access to and use of the Physician Portal, the Terms and any Dispute that might arise between you and Soundable Health shall be governed by the laws of the State of California, without regard to its conflict of law provisions.

c) Class Action Waiver. Any proceedings to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. Neither you nor Soundable Health will seek to have any Dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.

d) Arbitration Procedures. Any arbitration will be conducted by JAMS under the JAMS Comprehensive Arbitration Rules and Procedures (“JAMS Rules”) in effect at the time the Dispute is filed.  You may request a telephonic or in-person hearing by following the JAMS Rules.  In a dispute involving $10,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. To the extent the forum provided by JAMS is unavailable, Soundable Health and you agree to select a mutually agreeable alternative dispute resolution service and that such alternative dispute resolution service shall apply the JAMS Rules.  The arbitrator may award the same damages to you individually as a court could.  The arbitrator may award declaratory or injunctive relief only to you individually, and only to the extent required to satisfy your individual claim.

e) Arbitration Fees. Whoever files the arbitration pays the initial filing fee.  If Soundable Health files, then Soundable Health will pay; if you file, then you will pay unless you get a fee waiver under the applicable arbitration rules.  Each party will bear the expense of that party’s attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines.

f) Filing Period.  To the extent permitted by law, any Dispute under these Terms must be filed within one (1) year in an arbitration proceeding.  The one-year period begins when the events giving rise to the Dispute first occur.  If a Dispute is not filed within one year, it is permanently barred.

12) Termination.

The term of these Terms will commence on the date of your first acceptance of these Terms and continue until the earliest of: (i) the date upon which Soundable Health, in its sole discretion, provides notice to you of termination of these Terms or your access to the Physician Portal is terminated (which may occur for any reason); and (ii) your violation or breach of any provisions of these Terms (the “Term”). You may also discontinue your account at any time, for any reason, by email request to support@soundablehealth.com. Upon expiration or termination of these Terms, the rights granted to you under these Terms with respect to the Physician Portal will immediately terminate. However, Soundable Health’s ownership of your Feedback, as well as the limitations on Soundable Health’s liability, the indemnification provisions and the terms pertaining to the dispute resolution process, will survive any expiration or termination of these Terms.

13) Miscellaneous.

a) Supplemental Terms.   When using the Physician Portal, you agree to comply with and are subject to any posted guidelines, rules, or supplemental terms applicable to such services or features, as may be posted from time to time.  All such guidelines, rules, or terms are hereby incorporated by reference into these Terms.  To the extent that you are asked to review and accept any supplemental terms that expressly conflict with these Terms, the supplemental terms associated with the applicable portion of the Physician Portal services govern with respect to your use of such portion of the Physician Portal services to the extent of the conflict. 

b) No Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Soundable Health without restriction.  These Terms operate to the fullest extent permissible by law. 

c) Severability.  If any provision of these Terms is held to be unlawful, void, or unenforceable, that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.  

d) No Waiver. Soundable Health’s failure to enforce any provisions of these Terms or respond to a violation by any party does not waive Soundable Health’s right to subsequently enforce any terms or conditions of the Terms or respond to any violations. Nothing contained in these Terms is in derogation of Soundable Health’s right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Physician Portal or information provided to or gathered by Soundable Health with respect to such uses.  

e) Governing Law.   These Terms shall be governed by, and construed and interpreted in accordance with, the laws of the United States and the State of California.  By using the Physician Portal, you waive any claims that may arise under the laws of other states, countries, territories, or jurisdictions.

f) Contact. For inquiries or questions regarding these Terms or the Physician Portal, please contact Soundable Health at support@soundable.health