Soma Beta Terms of Service
Welcome to Soma. These Beta Terms of Service (“Terms”) govern your access to and
use of the beta version of Soma’s Service. The Service is a product of Soma Precision
Health, Inc. (referred to herein as “Soma”, “we,” or “us”). For the purpose of these
Terms, the “Service” is Soma’s online software-as-a-service platform and desktop
application (the “Application”) which is not yet commercially available and “you” and
“your” means you as an individual person who is authorized to access and use the
Service.
These Terms are a legally binding contract between you and Soma regarding
your use of the Service. By agreeing to the Terms, installing the Application, or
accessing or using the Service, you agree that you have read and understood, and, as
a condition to your use of the Service, you agree to be bound by, these Terms and
our Privacy Policy available at [insert URL]. If you are not eligible, or do not agree to
these Terms and our Privacy Policy, then you do not have our permission to use the
Service.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section
17 (Dispute Resolution and Arbitration), you agree that disputes arising under
these Terms will be resolved by binding, individual arbitration, and BY
ACCEPTING THESE TERMS, YOU AND SOMA ARE EACH WAIVING THE RIGHT
TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR
REPRESENTATIVE PROCEEDING.
IMPORTANT: Using the Service to record your conversations without the consent
of all parties to the conversation violates these Terms and may violate applicable
law. You agree not to activate the Service during conversations with anyone who
has not consented to the recording of the conversations by the Soma Service and
acknowledge that doing so is a breach of these Terms.
Soma Service Overview. The Service uses voice and other personal information to
surface insights about cognitive performance. Soma allows you to measure and
track your cognitive performance based on your personal information, including how
you talk, such as on calls, in meetings, dictating notes or when speaking to an AI
assistant through your device, and passing this information through Soma’s
proprietary models.Eligibility. You must be at least 18 years old to use the Service. By agreeing to
these Terms, you represent and warrant to us that: (a) you are at least 18 years old;
(b) you have not previously been suspended or removed from the Service; and
(c)your registration and your use of the Service is in compliance with any and all
applicable laws and regulations.Accounts and Registration. To access and use the Service, you must register for
an account and provide us with certain information. You will need a valid Google
email and password to create a Soma account. When you register for an account,
you will be required to provide us with some information about yourself, such as your
name and email address. You agree that the information you provide to us is
accurate and that you will keep it accurate and up to date at all times. When you
register, you will be asked to provide a password. You are solely responsible for
maintaining the confidentiality of your account and password, and you accept
responsibility for all activities that occur under your account. If you believe that your
account is no longer secure, then you must immediately notify us at us
at beta@soma-health.co.Licenses
(a) Soma’s License to You.
i. License. Subject to your ongoing compliance with these Terms, Soma grants
you solely for your personal, non-commercial use a limited, non-exclusive,
non-transferable, non-sublicensable, revocable license to (1) download and
use the Application solely to access the Service; and (2) access and use the
Service through the Application. To the extent any component of the
Application may be offered under an open source license, the provisions of
that license may expressly override some of these Terms.
ii. License Restrictions. Except to the extent such a restriction is impermissible
under applicable law, you may not: (1) reproduce, distribute, publicly display,
publicly perform, or create derivative works of the Service; (2) make
modifications to the Service; (3) interfere with or circumvent any feature of the
Service, including any security or access control mechanism; (4) upload or
otherwise disseminate any virus, adware, spyware, worm, or other malicious
code; (5) use the Service to develop or train any artificial intelligence,
machine learning models, or algorithms; or (6) reverse engineering or
otherwise attempting to discover the source code of any portion of the Service
except to the extent that the activity is expressly permitted by applicable law.
iii. Feedback. We respect and appreciate thoughts and comments from our
users. If you choose to provide input and suggestions regarding existing
functionalities, problems with or proposed modifications or improvements to
the Service (“Feedback”), then you hereby grant Soma a worldwide,
unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right
and license to exploit the Feedback in any manner and for any purpose,
including to improve the Service and create other products and services. We
will have no obligation to provide you with attribution for any Feedback you
provide to us.
iv. Ownership; Reservation of Rights. The Service is owned and operated by
Soma. The visual interfaces, graphics, design, compilation, information, data,
computer code (including source code or object code), algorithms, products,
software, services, and all other elements of the Service provided by Soma
(“Soma Materials”) are protected by intellectual property and other laws. All
Soma Materials included in the Service are the property of Soma or its third-
party licensors. Except as expressly authorized by Soma, you may not make
use of the Soma Materials. There are no implied licenses in these Terms and
Soma reserves all rights to the Soma Materials not granted expressly in these
Terms.
(b) Your Licenses to Soma.
i. User Data. We use your voice and other audio, as well as other information
that you provide to us, in order to provide you with the Service. That includes
the voices of other call participants, music, videos, or any other audio that is
playing back through the computer’s speakers (“Audio Inputs”). In addition to
providing Audio Inputs, you may be required to provide Soma with other
information we need to provide you with the Service. For the purpose of these
Terms, “User Data” means any data, information and content that a User
uploads, submits or processes through the Service including Audio Inputs.
Soma uses User Data to provide the Service including to create User
Outputs. For the purpose of these Terms, “User Outputs” means cognitive
performance scores and insights and other information, data and reports that
we generate when we pass User Data through our proprietary technology,
models and algorithms.
ii. License. You grant to Soma a non-exclusive, royalty-free, worldwide,
sublicensable right and license to access, reproduce, modify, distribute,
transmit, export, display, store and otherwise use the User Data in any and all
media now known or later developed in order to (1) provide you with the
Service including generating User Outputs; (2) monitor, maintain, and
optimize the Service; (3) build, train, improve, or provide Soma’s current and
future products and services (including, without limitation, any that leverage or
include artificial intelligence technologies or capabilities, such as its own
algorithms, large language models, and machine learning models); (4)
manage the relationship between Soma and you; (5) monitor, investigate,
prevent and detect fraud, security incidents and other misuse of the Service,
and to prevent harm to Soma, you, and third parties including Soma’s other
customers; (6) verify your identity; (7) carry out Soma’s core business
operations, such as accounting, audits, tax preparation and for filing and
compliance purposes; and (8) comply with applicable laws, rules, and
regulations including those relating to the processing and retention of
personal data to which Soma is subject.
iii. Limitations. Soma does not claim to own your User Data or the User Outputs
we provide to you. Soma does not sell, license, or share User Data or User
Outputs with any third party for their own advertising, marketing, or
commercial purposes.Prohibited Conduct. By using the Service, you agree not to:
(a) use the Service for any illegal purpose or in violation of any local, state, national,
or international law;
(b) violate, or encourage others to violate, any right of a third party, including by
infringing or misappropriating any third party intellectual property right;
(c) interfere with security-related features of the Service, including by disabling or
circumventing features that prevent or limit use or copying of any content;
(d) interfere with the operation of the Service or any user’s enjoyment of the Service,
including by interfering with or disrupting any network, equipment, or server
connected to or used to provide the Service;
(e) perform any fraudulent activity including impersonating any person or entity,
claiming a false affiliation, accessing any other Service account without
permission, or falsifying your age or date of birth;
(f) record any individual without their knowledge and consent as required by
applicable law;
(g) record or process copyrighted broadcasts or confidential calls you’re not party to;
(h) create deepfakes, voice clones, or any content intended to deceive or
impersonate;
(i) use User Outputs to train, develop, or improve a product or service that
competes with the Service;
(j) resell or sublicense access to the Service without our written permission; or
(k) attempt to do any of the acts described in this Section 5 or assist or permit any
person in engaging in any of the acts described in this Section 5.
If you misuse the Service we may suspend or close your account and, at our option,
pursue legal remedies.Payment Terms
(a) Fees for Service. Certain features of the Service may require you to pay fees.
Before you pay any fees, you will have an opportunity to review and accept the
fees that you will be charged. Unless otherwise specifically provided for in these
Terms, all fees are in U.S. Dollars and are non-refundable, except as required by
law.
(b) Price. Soma reserves the right to determine pricing for the Service. Soma will
make reasonable efforts to keep pricing information published on the Service up
to date. We encourage you to check the location on our website where we post
pricing information periodically for current pricing information. Soma may change
the fees for any feature of the Service, including additional fees or charges, if
Soma gives you advance notice of changes before they apply. Soma, at its sole
discretion, may make promotional offers with different features and different
pricing to any of Soma’s customers. These promotional offers, unless made to
you, will not apply to you or these Terms.
(c) Authorization. You authorize Soma to charge all sums for the orders that you
make and any level of Service you select as described in these Terms or
published by Soma, including all applicable taxes, to the payment method
specified in your account. If you pay any fees with a credit card, then Soma may
seek pre-authorization of your credit card account prior to your purchase to verify
that the credit card is valid and has the necessary funds or credit available to
cover your purchase.
(d) Subscription Service. The Service may include certain subscription-based
plans with automatically recurring payments for periodic charges (“Subscription
Service”). The “Subscription Billing Date” is the date when you purchase your
first subscription to the Service. The Subscription Service will begin on the
Subscription Billing Date and continue for the subscription period that you select
on your account (such period, the “Initial Subscription Period”) and will
automatically renew for successive periods of the same duration as the Initial
Subscription Period (the Initial Subscription Period and each such renewal
period, each a “Subscription Period”) unless you cancel the Subscription
Service or we terminate it. If you activate a Subscription Service, then you
authorize Soma to periodically charge, on a going-forward basis and until
cancellation of the Subscription Service, all accrued sums on or before the
payment due date. For information on the “Subscription Fee”, please see HERE.
Your account will be charged automatically on the Subscription Billing Date and
thereafter on the renewal date of your Subscription Service for all applicable fees
and taxes for the next Subscription Period. You must cancel your Subscription
Service before it renews to avoid billing of the next periodic Subscription Fee to
your account. Soma will bill the periodic Subscription Fee to the payment method
associated with your account or that you otherwise provide to us. You may
cancel the Subscription Service by contacting us at beta@soma-health.co. Your
cancellation must be received before the renewal date to avoid charge for the
next subscription period. Any disputes related to payment processing should be
addressed to Soma at [ADD appropriate Soma email address]
(e) Delinquent Accounts. Soma may suspend or terminate access to the Service,
including fee-based portions of the Service, for any account for which any
amount is due but unpaid. In addition to the amount due for the Service, a
delinquent account may be charged with fees or charges that are incidental to
any chargeback or collection of any unpaid amount, including collection fees. If
your payment method is no longer valid at the time a renewal Subscription Fee is
due, then Soma reserves the right to delete your account and any information or
content associated with your account without any liability to you.Compliance with Applicable Laws. You represent, warrant, and agree that you will
use and interact with the Service in compliance with all applicable laws, treaties and
regulations including those related to data privacy, international communications,
export laws and the transmission of technical or personal data laws which, for clarity,
includes laws governing the monitoring or recording individuals without their
knowledge and consent where required by law. If you are prohibited under
applicable law from using the Service, then you may not use it.Third Party Services Sharing on the Service; Linked Websites. Soma may
provide tools through the Service that enable you to share User Outputs with other
users on the Service or to third party services. By using one of these tools, you
agree that Soma may transfer the User Outputs to the applicable third party service.
Third party services are not under Soma’s control, and, to the fullest extent permitted
by law, Soma is not responsible for any third party service’s use of your exported
information. Soma may also make available tools that enable you to share your User
Outputs with other users of the Service or the public. If you share your User Outputs
with other users on the Service, Soma does not control how these users may use
your User Outputs and will have no liability for their use of such data. The Service
may also contain links to third party websites. Linked websites are not under Soma’s
control, and Soma is not responsible for their content.Third Party Terms. The Service may operate on, with, or using third party services,
connection, data, software, application, application programming interfaces (APIs),
plug-ins or other technology products that are developed, owned, or licensed, by
entities other than Soma, and that may interoperate or integrate with the Service
provided by Soma (“Third Party Applications”). Third Party Applications are not
provided, owned, controlled, or supported by Soma, and their availability or
functionality may be subject to separate terms and conditions, privacy policies, and
fees imposed by the third-party application provider. Soma is not responsible for the
availability and operation of the Service solely to the extent such availability and
operation is dependent on such Third Party Applications.Communications. Soma may send you emails concerning our products and
services, as well as those of third parties. You may opt out of promotional emails by
following the unsubscribe instructions in the promotional email itself.Medical Information Disclaimer. User Outputs, other information and insights
generated by the Service are for informational, general education and wellness
purposes only. Nothing in this Service constitutes or is intended to constitute medical
advice, diagnosis, treatment, or the practice of medicine. We are not diagnosing any
medical condition, and nothing in the Service should be interpreted as a clinical
assessment. The content provided through this Service should not be relied upon as
a substitute for professional medical advice, diagnosis, or treatment from a qualified
healthcare provider who is familiar with your individual circumstances. Always seek
the advice of your physician or other qualified healthcare professional regarding any
medical condition, symptom, treatment option, or health-related concern. Never
disregard, avoid, or delay obtaining professional medical advice because of
information obtained from this Service. Your use of this Service and its
offerings do not create a physician-patient, provider-patient, therapist-patient, or
other professional healthcare relationship between you and the Service owner, its
affiliates, employees, contractors, or representatives. Any decisions regarding your
health, medical care, or treatment should be made in consultation with a licensed
healthcare professional. If you are experiencing a medical emergency, call 911 or
your local emergency services provider immediately.Modifications
(a) Modification of the Terms. We reserve the right to modify these Terms in our
discretion. Revisions will be effective immediately except that, for existing users,
material revisions will be effective 30 days after posting or notice to you of the
revisions unless otherwise stated. We may require that you accept modified
Terms to continue to use the Service. If you do not agree to the modified Terms,
then you should discontinue your use of the Service. Except as expressly
permitted in this Section 12(a), these Terms may be amended only by a written
agreement signed by authorized representatives of the parties to these Terms.
(b) Modification of the Service. Soma reserves the right to modify or discontinue
all or any portion of the Service at any time (including by limiting or discontinuing
certain features of the Service), temporarily or permanently, without notice to
you. Soma will have no liability for any change to the Service, including any paid
for functionalities of the Service, or any suspension or termination of your access
to or use of the Service.Term and Termination
(a) Term. These Terms are effective beginning when you accept the Terms or first
download, install, access, or use the Service, and ending when terminated as
described in Section 13.(b)Termination).
(b) Termination. If you violate any provision of these Terms, then your authorization
to access the Service, and these Terms, automatically terminate. In addition,
Soma may, at its sole discretion, terminate these Terms or your account on the
Service, or suspend or terminate your access to the Service, at any time for any
reason or no reason, with or without notice, and without any liability to you arising
from such termination. You may terminate or delete your account and these
Terms at any time by navigating to the “Settings” page within the Application and
selecting “Delete Account” or by contacting customer service at beta@soma-
health.co.
(c) Effect of Termination. Upon termination of these Terms: (i) your license rights
will terminate and you must immediately cease all use of the Service; (ii) you will
no longer be authorized to access your account or the Service; (iii) you must pay
Soma any unpaid amount that was due prior to termination; and (iv) all payment
obligations accrued prior to termination. All provisions of these Terms which by
their nature should survive termination shall survive termination, including without
limitation ownership provisions, warranty disclaimers, indemnity, and limitations
of liability. If your account has been terminated for a breach of these Terms, then
you are prohibited from creating a new account on the Service using a different
name, email address or other forms of account verification.Warranties and Disclaimers
(a) DISCLAIMER. THE SERVICE AND ALL MATERIALS AND CONTENT
AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN
“AS AVAILABLE” BASIS. SOMA DISCLAIMS ALL WARRANTIES OF ANY
KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND
ALL USER OUTPUTS AND OTHER MATERIALS AND CONTENT AVAILABLE
THROUGH THE SERVICE, INCLUDING: (i) ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,
QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTY
ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. SOMA DOES
NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE,
OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE,
WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR
OTHER HARMFUL COMPONENTS, AND SOMA DOES NOT WARRANT THAT
ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR
INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM
THE SERVICE OR SOMA OR ANY MATERIALS OR CONTENT AVAILABLE
THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY
THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE
ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM
THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER.
YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE
SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT
RESPONSIBLE FOR ANY DAMAGE TO YOUR OR ANY THIRD PARTY’S
PROPERTY (INCLUDING YOUR COMPUTER SYSTEM IN CONNECTION
WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING AUDIO DATA,
USER DATA OR ANY OTHER DATA THAT YOU SUBMIT TO THE SERVICE.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION
14(a) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Soma does
not disclaim any warranty or other right that Soma is prohibited from disclaiming
under applicable law.
(b) Beta. Beta or preview versions of the Service or features are provided as-is,
may change or be removed without notice, and are excluded from any
warranties or service commitments. The Service is currently in beta
development. The Service is experimental in nature, may be incomplete, and
may contain errors, defects, or bugs. We have the right to and may change,
update, recalibrate or otherwise modify the Service at any time and in any way.
The Service is evolving, is in active development and has not been
independently validated including the underlying algorithms that we use to
generate insights about a User’s cognitive performance. User scores and metrics
may change because our measurement methods have improved or been
revised. Some metrics may be combined, renamed, or removed in future
versions of the Service.
(c) User Representations and Warranties. You are solely responsible for your
User Data and the consequences of providing User Data via the Service. By
providing User Data via the Service, you affirm, represent, and warrant that: (i)
you have the necessary licenses, rights, consents, and permissions to authorize
Soma to exercise the licenses granted by you, in the manner contemplated by
Soma, the Service, and these Terms; and (ii) the User Data and the use of your
User Data as contemplated by these Terms, does not and will not: (1) infringe,
violate, or misappropriate any third party right, including any copyright,
trademark, patent, trade secret, moral right, privacy right, right of publicity, or any
other intellectual property or proprietary right; (2) slander, defame, libel, or invade
the right of privacy, publicity or other property rights of any other person; or (3)
cause Soma to violate any law or regulation including those with respect to
monitoring or recording persons without their consent. You are solely
responsible for complying with applicable wiretapping, two-party and all-
party consent recording, and recording-disclosure laws in every
jurisdiction where you or any third party who is the subject of Audio Inputs
is located.Indemnification. To the fullest extent permitted by law, you are responsible for your
use of the Service, and you will indemnify, defend (at Soma’s option), and hold
harmless Soma, its affiliates and their respective shareholders, directors, managers,
members, officers, employees, consultants, and agents (together, the “Soma
Entities”) from and against every claim brought by a third party, and any related
liability, damage, loss, and expense, including attorneys’ fees and costs, arising out
of or in connection with: (a) your unauthorized use of, or misuse of, the Service; (b)
your violation of any portion of these Terms, any representation, warranty, or
agreement referenced in these Terms, or any applicable law or regulation; (c) your
violation of any third party right, including any intellectual property right or publicity,
confidentiality, other property or privacy right including your monitoring or recording
of any individual without providing notices to and obtaining consents from individuals
in connection with any recordings as required by law; or (d) any other dispute or
issue between you and any third party. We reserve the right, at our own expense, to
assume the exclusive defense and control of any matter otherwise subject to
indemnification by you (without limiting your indemnification obligations with respect
to that matter), and in that case, you agree to cooperate with our defense of those
claims.Limitation of Liability
(a) TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE
SOMA BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR
LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS)
ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR
YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS
OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY,
CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER
LEGAL THEORY, AND WHETHER OR NOT ANY SOMA HAS BEEN
INFORMED OF THE POSSIBILITY OF DAMAGE.
(b) EXCEPT AS PROVIDED IN SECTIONS 17(f)(Commencing Arbitration) AND
17(h)(ARBITRATION RELIEF) AND TO THE FULLEST EXTENT PERMITTED
BY LAW, THE AGGREGATE LIABILITY OF THE SOMA TO YOU FOR ALL
CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY
INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE
UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE,
IS LIMITED TO $100.
(c) EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION
OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF
DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN
THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL
ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL
OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS
SECTION 16 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED
REMEDY FAILS OF ITS ESSENTIAL PURPOSE.Dispute Resolution and Arbitration
(a) Informal Resolution. Before filing a claim against Soma, you agree to attempt
to resolve the dispute by first emailing us at beta@soma-health.co with a
description of your claim and proof of your relationship with Soma. We will try to
resolve the dispute informally by following up via email, phone or other methods.
If we cannot resolve the dispute within 60 days of our receipt of your first email,
you or Soma may then bring a formal proceeding.
(b) Generally. Except as described in Section 17(b)(Exceptions) and 17(c) (Opt-
Out), you and Soma agree that every dispute arising in connection with these
Terms, the Service, or communications from us will be resolved through binding
arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less
formal than a court proceeding, may allow for more limited discovery than in
court, and is subject to very limited review by courts. This agreement to arbitrate
disputes includes all claims whether based in contract, tort, statute, fraud,
misrepresentation, or any other legal theory, and regardless of whether a claim
arises during or after the termination of these Terms. Any dispute relating to the
interpretation, applicability, or enforceability of this binding arbitration agreement
will be resolved by the arbitrator. YOU UNDERSTAND AND AGREE THAT, BY
ENTERING INTO THESE TERMS, YOU AND SOMA ARE EACH WAIVING THE
RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(c) Exceptions to the Agreement to Arbitrate. Although we are agreeing to
arbitrate most disputes between us, nothing in these Terms will be deemed to
waive, preclude, or otherwise limit the right of either party to: (i) bring an
individual action in small claims court in San Francisco, California, or any United
States county where you live or work; (ii) pursue an enforcement action through
the applicable federal, state, or local agency if that action is available; (iii) seek
injunctive relief in a court of law in aid of arbitration; or (iv) to file suit in a court of
law to address an intellectual property infringement claim.
(d) Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may
opt out of the provisions of this Section 17 (Dispute Resolution and Arbitration)
within 30 days after the date that you agree to these Terms by sending a letter to
Soma Precision Health, Inc., Attention: Legal Department – Arbitration Opt-Out,
that specifies: your full legal name, the email address associated with your
account on the Service, and a statement that you wish to opt out of arbitration
(“Opt-Out Notice”). Once Soma receives your Opt-Out Notice, this Section 17
(Dispute Resolution and Arbitration) will be void and any action arising out of
these Terms will be resolved as set forth in Section 18(b) (Governing Law). The
remaining provisions of these Terms will not be affected by your Opt-Out Notice.
(e) Arbitrator. This arbitration agreement, and any arbitration between us, is subject
to the Federal Arbitration Act and will be administered by JAMS under the rules
applicable to consumer disputes (collectively, “JAMS Rules”) as modified by
these Terms. The JAMS Rules and filing forms are available online
at www.jamsadr.com, by calling the JAMS at 1-800-352-5267 or by contacting
Soma.
(f) Commencing Arbitration. Before initiating arbitration, a party must first send a
written notice of the dispute to the other party by certified U.S. Mail or by Federal
Express (signature required) or, only if that other party has not provided a current
physical address, then by electronic mail (“Notice of Arbitration”). Soma’s
address for Notice of Arbitration is: 2267 Hayes Street, San Francisco, CA 94117
The Notice of Arbitration must: (i) identify the name or account number of the
party making the claim; (ii) describe the nature and basis of the claim or dispute;
and (iii) set forth the specific relief sought (“Demand”). The parties will make
good faith efforts to resolve the claim directly, but if the parties do not reach an
agreement to do so within 30 days after the Notice of Arbitration is received, you
or Soma may commence an arbitration proceeding. The payment of all fees will
be governed by the JAMS Rules.
(g) Arbitration Proceedings. Any arbitration hearing will take place in the county
and state of your residence unless we agree otherwise or, if the claim is for
US$10,000 or less (and does not seek injunctive relief), you may choose whether
the arbitration will be conducted: (I) solely on the basis of documents submitted
to the arbitrator; (II) through a telephonic or video hearing; or (III) by an in-person
hearing as established by the JAMS Rules in the county (or parish) of your
residence. During the arbitration, the amount of any settlement offer made by you
or Soma must not be disclosed to the arbitrator until after the arbitrator makes a
final decision and award, if any. Regardless of the manner in which the
arbitration is conducted, the arbitrator must issue a reasoned written decision
sufficient to explain the essential findings and conclusions on which the decision
and award, if any, are based.
(h) Arbitration Relief. Except as provided in Section 17(h) (No Class Actions), the
arbitrator can award any relief that would be available if the claims had been
brought in a court of competent jurisdiction. If the arbitrator awards you an
amount higher than the last written settlement amount offered by Soma before an
arbitrator was selected, Soma will pay to you the higher of: (i) the amount
awarded by the arbitrator and (ii) US$10,000. The arbitrator’s award shall be final
and binding on all parties, except (1) for judicial review expressly permitted by
law or (2) if the arbitrator’s award includes an award of injunctive relief against a
party, in which case that party shall have the right to seek judicial review of the
injunctive relief in a court of competent jurisdiction that shall not be bound by the
arbitrator’s application or conclusions of law. Judgment on the award may be
entered in any court having jurisdiction.
(i) No Class Actions. YOU AND SOMA AGREE THAT EACH MAY BRING
CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL
CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY
PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
(j) Modifications to this Arbitration Provision. If Soma makes any substantive
change to this arbitration provision, you may reject the change by sending us
written notice within 30 days of the change to Soma’s address for Notice of
Arbitration, in which case your account with Soma will be immediately terminated
and this arbitration provision, as in effect immediately prior to the changes you
rejected, will survive.
(k) Enforceability. If Section 17(h) (No Class Actions) or the entirety of this Section
17 (Dispute Resolution and Arbitration) is found to be unenforceable, or if Soma
receives an Opt-Out Notice from you, then the entirety of this Section 17 (Dispute
Resolution and Arbitration) will be null and void and, in that case, the exclusive
jurisdiction and venue described in Section 18(b)(Governing Law) will govern any
action arising out of or related to these Terms.Miscellaneous
(a) General Terms. These Terms, including any other agreements expressly
incorporated by reference into these Terms, are the entire and exclusive
understanding and agreement between you and Soma regarding your use of the
Service. You may not assign or transfer these Terms or your rights under these
Terms, in whole or in part, by operation of law or otherwise, without our prior
written consent. We may assign these Terms and all rights granted under these
Terms, at any time without notice or consent including, without limitation, to any
of its affiliates or subsidiaries, or to any successor in interest of any business
associated with the Services. The failure to require performance of any provision
will not affect our right to require performance at any other time after that, nor will
a waiver by us of any breach or default of these Terms, or any provision of these
Terms, be a waiver of any subsequent breach or default or a waiver of the
provision itself. Use of Section headers in these Terms is for convenience only
and will not have any impact on the interpretation of any provision. Throughout
these Terms the use of the word “including” means “including but not limited to.”
If any part of these Terms is held to be invalid or unenforceable, then the
unenforceable part will be given effect to the greatest extent possible, and the
remaining parts will remain in full force and effect.
(b) Governing Law. These Terms are governed by the laws of the State of
California without regard to conflict of law principles. You and Soma submit to the
personal and exclusive jurisdiction of the state courts and federal courts located
within San Francisco County, California, for resolution of any lawsuit or court
proceeding permitted under these Terms.
(c) Privacy Policy. Please read the Soma Privacy Policy carefully for information
relating to our collection, use, storage, and disclosure of your personal
information.
(d) Additional Terms. Your use of the Service is subject to all additional terms,
policies, rules, or guidelines applicable to the Service or certain features of the
Service that we may post on or link to from the Service (the “Additional Terms”).
All Additional Terms are incorporated by this reference into, and made a part of,
these Terms.
(e) Notice to California Residents. If you are a California resident, then under
California Civil Code Section 1789.3, you may contact the Complaint Assistance
Unit of the Division of Consumer Services of the California Department of
Consumer Affairs in writing at 1625 N. Market Blvd., Suite N 112, Sacramento,
California 95834, or by telephone at +1-800-952-5210 in order to resolve a
complaint regarding the Service or to receive further information regarding use of
the Service.
(f) No Support. We are under no obligation to provide support for the Service. In
instances where we may offer support, the support will be subject to published
policies.
(g) International Use. The Service is intended for visitors located within the United
States and the European Union. We make no representation that the Service is
appropriate or available for use outside of the United States and European
Union. Access to the Service from countries or territories or by individuals where
such access is illegal is prohibited