Cough Collector Terms of Use
Last Updated: June 16, 2023
PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THE COUGH COLLECTOR MOBILE APPLICATION.
1. Introduction.
Your health is very important to us. ALWAYS consult your doctor about changes in your health. The App is not a substitute for your doctor, nor is the App meant to supplement, let alone replace, the information provided by doctors, pharmacists, or other health professionals. By accepting these Terms of Use, you acknowledge and agree that you are solely responsible for your health.
The use of the App by users (“you”, “your” or “users”) is subject to the terms and conditions contained in these Terms of Use (“Terms”). Please read these Terms carefully before you install, access, or use the App. These Terms are legally binding, and your use of the App serves as your acceptance of the Terms. If you do not agree with any of the Terms, you are not permitted to access or use the App.
We may amend the Terms by posting the amended versions on our website or in the App. You agree that either of the foregoing will constitute sufficient and effective notice. By continuing to use the App more than 30 days after we post an amended version, you confirm your acceptance to the Terms as amended. If you do not agree with any of the changes, you must immediately stop using the App and your license to use the App will immediately terminate.
IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT REQUIRES YOU TO RESOLVE DISPUTES WITH AUDIBLEHEALTH ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION, AND NOT BY A JURY TRIAL. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
2. DISPUTE RESOLUTION; ARBITRATION AGREEMENT; CLASS ACTION AND JURY TRIAL WAIVER
BY AGREEING TO THE TERMS, YOU AGREE THAT YOU ARE REQUIRED TO RESOLVE ANY CLAIM THAT YOU MAY HAVE AGAINST AUDIBLEHEALTH ON AN INDIVIDUAL BASIS IN ARBITRATION, AS SET FORTH IN THIS SECTION. THIS WILL PRECLUDE YOU FROM BRINGING ANY CLASS, JOINT, COLLECTIVE, REPRESENTATIVE, OR CONSOLIDATED ACTION AGAINST AUDIBLEHEALTH, AND ALSO PRECLUDE YOU FROM PARTICIPATING IN OR RECOVERING RELIEF UNDER ANY CURRENT OR FUTURE CLASS, JOINT, COLLECTIVE, REPRESENTATIVE, OR CONSOLIDATED ACTION BROUGHT AGAINST AUDIBLEHEALTH BY SOMEONE ELSE.
Most disputes that arise out of the use of the App can be resolved quickly, informally, and with mutual satisfaction by reaching out to us at customerservice@audiblehealth.ai.
If any dispute remains unresolved after that process, however, you and AudibleHealth agree to have all disputes resolved by arbitration, which shall be final and binding on both parties, except disputes (i) that may be brought in an individual action in small claims court, or (ii) that relate to the ownership or enforcement of intellectual property rights. In addition, you and AudibleHealth each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights. In any such case, your waiver of the right to a jury trial and the class action waiver set forth in this Agreement shall continue to apply.
“Dispute” includes any dispute, action, or other controversy, whether based on past, present, or future events, between you and AudibleHealth concerning the App or Terms, whether in contract, tort, warranty, statute, regulation, or other legal or equitable basis. You and AudibleHealth empower the Arbitrator with the exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of these Terms or the formation of this contract, including the arbitrability of any dispute and any claim that all or any part of the Terms are void or voidable.
CLASS ACTION AND JURY TRIAL WAIVERS. BY ENTERING INTO THE TERMS, YOU AND AUDIBLEHEALTH EACH EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY. ADDITIONALLY, YOU AND AUDIBLEHEALTH AGREE THAT EACH MAY ONLY BRING CLAIMS AGAINST THE OTHER IN AN INDIVIDUAL CAPACITY AND THAT THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED IN ANY PURPORTED CLASS, JOINT, COLLECTIVE, REPRESENTATIVE, OR CONSOLIDATED PROCEEDING OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR ON BEHALF OF THE GENERAL PUBLIC, OTHER USERS, OR ANY OTHER PERSONS. As such, you and AudibleHealth acknowledge and agree that each waives any right to participation as a plaintiff or a class member in a class action litigation or arbitration, or in any other collective or consolidated action, with respect to these Terms. Neither you nor AudibleHealth may be a representative of any other potential claimants or class of potential claimants in any such dispute, nor may two or more users’ disputes be consolidated or otherwise determined in one proceeding. This will also preclude you and AudibleHealth from participating in or recovering relief under any current or future class, joint, collective, representative, or consolidated action brought by someone else.
A. Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of New York.
B. Initiating Arbitration. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration - Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879.) The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of New York and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the proposed list of arbitrators by the AAA, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.
C. Location and Procedures. If the claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and AudibleHealth submit to the Arbitrator, unless you request a hearing, and the Arbitrator determines that a hearing is necessary. If the claim exceeds $10,000, arbitration may be conducted in person, through the submission of documents, by phone, or online, and your right to a hearing will be determined by the AAA Rules. Proceedings that cannot be conducted through the submission of documents, by phone, or online, will take place in New York County, New York or in another jurisdiction to which you and AudibleHealth agree in writing; provided, however, that if circumstances prevent you from traveling to New York, the AAA may hold an in-person hearing in the state where you reside. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
D. Arbitrator’s Decision. The Arbitrator will render a written award within the time frame specified in the AAA Rules and shall provide a written decision with a statement of reasons if requested by either party. The Arbitrator may award declaratory or injunctive relief, but only in favor of the individual claimant, but only to the extent necessary to provide relief warranted by the claimant's individual claim. The Arbitrator shall not have authority to entertain any claim on behalf of a person who is not a named party, nor shall the Arbitrator have authority to make any award for the benefit of, or against, any person who is not a named party. The Arbitrator’s decision shall be final and binding on all parties. The Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect.
You and AudibleHealth agree to submit to the exclusive jurisdiction of the federal or state courts located in New York County, New York in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
E. Fees. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. AudibleHealth will reimburse those fees for claims totaling less than $10,000 unless the Arbitrator determines the claims are frivolous or brought for an improper purpose (based on the standards set forth in Federal Rule of Civil Procedure 11(b)). Likewise, AudibleHealth will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous or brought for an improper purpose (based on the standards set forth in Federal Rule of Civil Procedure 11(b)). The right to recover attorneys' fees and expenses set forth in the Terms supplements any right to attorneys' fees and expenses you may have under applicable law. You may not, however, recover duplicative awards of attorneys' fees or costs.
F. Severability. If any part of this Arbitration Agreement, other than the class action waiver, is deemed or found to be unenforceable for any reason, the remainder shall be enforceable. The class action waiver is non-severable and if it is deemed or found to be unenforceable for any reason, the whole Arbitration Agreement shall be null and void.
G. Disputes Between Users. You are solely responsible for your interactions with other users of the App and, to the extent that AudibleHealth provides the functionality, users of AudibleHealth’s other products or services that may interact with the App. AudibleHealth reserves the right, but has no obligation, to become involved in any way with disputes between you and other users.
3. Privacy.
We are committed to transparency about AudibleHealth’s privacy practices. You can find our Privacy Policy, which is incorporated into the Terms by reference, here.
4. Acceptable Use.
We prohibit certain kinds of conduct with respect to the App. We reserve the right to determine whether a user’s conduct violates these Terms, and to take action as we deem appropriate, which may include removing objectionable content or suspending or terminating a user’s access to the App. When you use the App, you agree not to:
· Violate any law, rule, or regulation;
· Violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights;
· Interfere with or disrupt the App systems or any server or network used to support or provide the App, including any hacking or cracking into the App, or attempting to circumvent any technological measure or authentication measures that we have implemented to protect the App;
· Use any software or program that damages, interferes with, or disrupts the App or another's computer or property, such as denial of service attacks, spamming, hacking, or uploading computer viruses, worms, Trojan horses, cancelbots, spyware, corrupted files and time bombs;
· Attempt to or decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide the App;
• Engage in spidering or harvesting, or participate in the use of software, including without limitation spyware, designed to collect data from the App;
• Use or distribute unauthorized software programs or tools, such as "auto" software programs, "macro" software programs, "cheat utility" software program or applications, exploits, undocumented features, design errors, or any other hacking or altering software or tool;
• Upload, communicate, transmit or otherwise make available in the App any content that is or could reasonably be viewed as unlawful, harmful, hateful, threatening, abusive, harassing, discriminatory, defamatory, vulgar, likely to incite violence or racial or ethnic hatred, of obscene or indecent nature, invasive of another's privacy, or any other content that is otherwise reasonably objectionable;
• Impersonate another person or falsely imply that you are a AudibleHealth employee or representative;
• Attempt to collect, obtain, or phish for a password, account information, or other information or personal data of other users;
• Improperly use technical support or make false reports to AudibleHealth;
• Modify any file or any other part of the App that AudibleHealth does not specifically authorize you in writing to modify;
• Attempt to use the App on or through any service that is not controlled or authorized by AudibleHealth;
• Use the App in a country in which AudibleHealth is prohibited from offering the App under applicable law, such as one that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country;
• Be listed on any U.S. Government list of prohibited or restricted parties;
• Be non-compliant with applicable third-party terms when using the App; or
• Promote or encourage any third party to participate in any prohibited activity described above.
5. Ownership.
The App and all rights, title and interest therein are and shall remain the property of AudibleHealth AI Inc. Except for the limited license granted below, neither these Terms nor your use of the App convey or grant to you any rights in or related to the App, or any right to use or reference AudibleHealth or its representations and likenesses, trademarks, logos and designs, or product and service marks (collectively, "Protected Material"). Protected Material displayed and used in the App is the property of AudibleHealth. You may not remove, copy or alter any Protected Material. Except as otherwise required by applicable law, any use, reproduction, distribution, modification, retransmission, or publication of any Protected Material is strictly prohibited without the express written consent of AudibleHealth. All rights not expressly granted herein are reserved by AudibleHealth.
Additionally, to the extent that you purchased or otherwise downloaded the App using the Apple App Store, you and we acknowledge that, in the event of any third-party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, as between AudibleHealth and Apple, AudibleHealth, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim, provided that this sentence shall not reduce or limit your responsibility in any way.
6. License.
Subject to your acceptance of the Terms and your continued compliance with the Terms, we grant you a limited, non-transferable, non-exclusive license to access and use the App for your own personal, non-commercial use. You may not copy, display, seek to disable, distribute, perform, publish, modify, transfer, create works from, or use the App or any component of it, except as expressly authorized by us. You are expressly prohibited from sub-licensing, renting, leasing, transferring or otherwise distributing the App or rights to use the App.
To the extent that you purchased or otherwise downloaded the App using the Apple App Store, the above license is further limited to your own personal, non-commercial use on any Apple-branded device that you own or control, and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that the App may be accessed and used by other accounts associated with the purchaser via Apple’s Family Sharing or volume purchasing.
7. User-Generated Content
To the extent that any information you input into the App or any information generated through your use of the App, any content provided by third parties, or any information associated with an account created by a third party (“User-Generated Content” or “UGC”) gives rise to any copyright, privacy, or other proprietary interest, you hereby grant AudibleHealth a non-exclusive, perpetual, irrevocable, fully transferable and sub-licensable worldwide right and license to use your UGC, third-party content, and information from accounts created by third parties in any way and for any purpose in connection with the App and related goods and services, and to distribute your UGC without any further notice or compensation to you of any kind for the whole duration of protection granted to intellectual property rights by applicable laws and international conventions. You hereby waive any moral rights of paternity, publication, reputation, or attribution with respect to AudibleHealth’s use and enjoyment of such assets in connection with the App and related goods and services under applicable law. The foregoing license grant to AudibleHealth, and the above waiver of any applicable moral rights, survives any termination of these Terms.
8. Changes, Maintenance and Support.
We are always working to improve and update the App. While we will work to give advance notice of such changes and updates to you, we reserve the right to change, update or discontinue the App at any time, with or without notice to you. To the extent that you purchased or otherwise downloaded the App using the Apple App Store, you and we acknowledge that, as between AudibleHealth and Apple, AudibleHealth is solely responsible for providing the maintenance and support services with respect to the App and that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
9. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY.
THE APP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITH NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. AUDIBLEHEALTH DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE APP AT THE TIMES OR LOCATIONS OF YOUR CHOOSING, THAT THE APP WILL BE OF A CERTAIN QUALITY OR SUITABILITY, OR WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED; OR THAT THE APP IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
AUDIBLEHEALTH WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER SIMILAR DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OR THE APP, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT AUDIBLEHEALTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY (AND AUDIBLEHEALTH’S EXCLUSIVE LIABILITY) FOR ANY DISPUTE WITH AUDIBLEHEALTH IS TO STOP USING THE APP.
TO THE EXTENT THAT AUDIBLEHEALTH MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY WARRANTY OR LIMIT ITS LIABILITY AS SET FORTH HEREIN, THE SCOPE OF SUCH WARRANTY AND THE EXTENT OF AUDIBLEHEALTH’S LIABILITY WILL BE THE MINIMUM REQUIRED UNDER SUCH APPLICABLE LAW.
ADDITIONAL WARRANTY TERMS APPLICABLE TO USERS OF THE APP ON APPLE DEVICES. NOTWITHSTANDING THE FOREGOING, TO THE EXTENT THAT YOU PURCHASED OR OTHERWISE DOWNLOADED THE APP USING THE APPLE APP STORE, AND THE APP FAILS TO CONFORM TO ANY APPLICABLE WARRANTY NOT ABLE TO BE DISCLAIMED, YOU MAY NOTIFY APPLE AND APPLE WILL REFUND THE PURCHASE PRICE FOR THE APP TO YOU, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLE WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE APP AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY.
YOU AND WE ACKNOWLEDGE THAT, AS BETWEEN AUDIBLEHEALTH AND APPLE, AUDIBLEHEALTH, NOT APPLE, IS RESPONSIBLE FOR ADDRESSING ANY OF YOUR CLAIMS OR ANY CLAIMS BY A THIRD PARTY RELATING TO THE APP OR YOUR POSSESSION AND/OR USE OF THE APP, INCLUDING WITHOUT LIMITATION: (I) PRODUCT LIABILITY CLAIMS; (II) ANY CLAIM THAT THE APP FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND (III) CLAIMS ARISING UNDER CONSUMER PROTECTION, PRIVACY, OR SIMILAR LEGISLATION; PROVIDED HOWEVER, THAT THIS SENTENCE SHALL NOT EXPAND OR OTHERWISE CHANGE OUR RESPONSIBILITY TO YOU.
10. Indemnification.
You agree to indemnify, defend, save, and hold AudibleHealth, its affiliated companies, officers, directors, contractors, employees, agents, licensors, and partners (collectively, “AudibleHealth Entity”) harmless from and against any and all claims, losses, damages, and liabilities, including legal fees and expenses, arising out of or relating to: (i) your use of the App; (ii) any breach or violation of these Terms; or (iii) your UGC. You are solely responsible for defending each claim against a AudibleHealth Entity, subject to such AudibleHealth Entity’s right to participate with counsel of its own choosing, at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all claims against a AudibleHealth Entity, provided that you will not agree to any settlement that imposes any obligation or liability on a AudibleHealth Entity without its prior express written consent. If we assume the defense of any claim, you agree to cooperate with our defense of such claims.
11. General.
a. Term and Termination. We reserve the right to condition a user’s access to the App on that user’s compliance with these Terms. We also reserve the right to terminate a user’s access to the App, at any time, at our sole discretion. You may terminate the Terms by discontinuing your use of the App. Notwithstanding termination by either you or us, Sections 2, 5, 7, 9, 10, and 11 of the Terms will remain in force, and you will continue to be liable for all your activities during the time you used the App.
b. Severability. You and AudibleHealth agree that if any portion of these Terms is found unlawful or unenforceable, in whole or in part, that provision will be ineffective only to the extent of such finding and as to such jurisdiction, without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of these Terms, which will be enforced to the fullest extent of applicable law.
c. Choice of Law; Venue. You and AudibleHealth agree that these Terms and any dispute of any nature that might arise between you and AudibleHealth will be governed by and construed in accordance with the laws of the state of New York, without giving effect to its conflict or choice of laws principles. You and AudibleHealth agree that any action at law or in equity that is not subject to the arbitration clause in Section 2 above shall be filed, and that venue properly lies, only in the state or federal courts located in New York County, New York, United States of America, and you and AudibleHealth expressly consent and submit to the exclusive and personal jurisdiction of such courts for the purposes of litigating such action.
d. Assignment. We may assign our rights and obligations under these Terms, in whole or in part, to any person or entity at any time with or without your approval. You may not assign any of the rights or obligations you have under these Terms without our prior written approval. Any such assignment without our prior written approval is ineffective and in violation of these Terms.
e. Entire Agreement. These Terms, including any additional policies referenced in the Terms, are the entire agreement between you and AudibleHealth. They supersede all prior and/or contemporaneous understandings, regardless of the medium (oral, written, or electronic) and practice (custom, policy, course of business, precedent) by which such understandings were communicated.
f. No Waiver. Our failure to enforce any right or provision in these Terms shall not constitute a waiver or relinquishment of such right or provision unless acknowledged and agreed to by us in writing.
g. Role of Apple. To the extent that you purchased or otherwise downloaded the App using the Apple App Store, you acknowledge that these Terms are between you and AudibleHealth only, and not with Apple, and that AudibleHealth, not Apple, is solely responsible for the App. You and we acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms, and that upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
h. Notices to AudibleHealth. All notices given by you or required from you under these Terms must be in writing and addressed to us at the address set forth below in the Contact Information section, below. Any notices that you provide without compliance with this subsection will have no legal effect.
i. Contact Information. If you have questions, complaints, or claims with respect to the Terms, please direct your communications to the following:
AudibleHealth, Inc.
Attn: Legal Department
6400 S. Fiddlers Green Circle, Ste 250
Greenwood Village CO 80111