last updated on March 16, 2023
Acceptance of the Terms
By using our Services, you agree to be bound by these Terms. If you do not agree to be bound by these Terms, please do not use the Services.
Changes to the Terms or Services
We may change the Terms at any time, in our sole discretion. If we change the Terms, we will notify you by posting the changed Terms on the Site, or through other means of communication. It is important that you review the Terms each time we change them, because by continuing to use the Services after the amended Terms are posted on the Site, you are indicating your agreement to be bound by the amended Terms. If you do not agree to be bound by the modified Terms, you should no longer use the Services. Because our Services change over time, we may change or discontinue all or part of the Services at any time without notice in our sole discretion.
Notice of Arbitration
Unless you decline arbitration within 30 days of the date you first agreed to the Terms by following the decline procedure specified in the “Arbitration” section below, and except for certain types of disputes described in the “Arbitration” section below, you agree that disputes between AudioVitality and you will be decided by individual binding arbitration, and you waive your right to a jury trial or to participate as a plaintiff or party in any purported class action or representative action.
Who Can Use the Services?
You may use the Services only if you are at least 13 years old and are not prohibited by applicable law from doing so. To make a purchase through the Services (as described in the “Purchases” section below), you must be at least 18 years old and capable of entering into a contract.
Registration and Information About You
If you wish to use certain features of the Services, you must create an account (the “Account”). You can do this through the Site. It is important that you provide us with accurate, complete and current information for your Account. You agree to update this information as necessary to keep it accurate, complete and current. If you fail to do so, we may have to suspend or terminate your Account. You agree not to disclose your Account password to anyone and to notify us immediately of any unauthorized use of your Account. You are responsible for all activities that occur under your Account, whether or not you have knowledge of them.
Use of the Services
You may access the Services to use the subscription-based functionality of the Services and to access the appointment scheduling functionality of the Services or to purchase products offered for sale through the Services (“Products”) as further described in the “Purchases” section below. You understand and agree that the Services, Products and any other information you obtain from AudioVitality are not suggested, intended or designed to diagnose, prevent or treat any health problem or disease, to check your health status or to replace professional medical care. Not all activities described in the Services or Products are appropriate for everyone. Do not use the Services while driving, operating heavy machinery or performing other tasks that require attention and concentration. You understand and agree that you are solely responsible for your use of the Services.
Title and Risk of Loss
Title to and risk of loss of AudioVitality Products purchased by you pass to you upon shipment from the AudioVitality facility. All shipments are governed by AudioVitality’s standard Shipping Terms.
If, for any reason, you are not satisfied with the Product you have purchased and wish to return it, please see our Return Policy for information on how you can return eligible Products.
If, for any reason, the customer fails to show up for the online appointment, AudioVitality reserves the right to charge the customer at the agreed upon rate.
Automatic Renewal of Subscriptions Until Terminated and Procedure for Terminating a Subscription
All amounts are due and charged (i) for a one-time purchase (e.g., a 3-month AudioVitality Program), at the time you place your order, and (ii) **for monthly or annual Subscriptions, at the beginning of the Subscription period and, as each monthly or annual Subscription is subject to automatic renewal for an additional period equal to the term of the expiring Subscription, until you terminate it**, at the time of each renewal until you terminate it, using the Payment Information you have provided. You must cancel your monthly or annual Subscription before it renews to avoid being charged for the next Subscription period. If you purchase a Subscription through the Site, **you may terminate the renewal of your Subscription at any time** by contacting us by email at email@example.com. If you purchase a Subscription through an Application Provider, **you may cancel your Subscription renewal at any time** with the Application Provider. Any fees already paid for your current Subscription period will not be refunded and you will continue to receive the Services ordered until the end of your current Subscription period.
Changes to Subscription and Other Services Pricing Terms
AudioVitality reserves the right to change its pricing terms for Subscriptions at any time. AudioVitality will notify you of such changes before they become effective. Changes in pricing terms will not apply retroactively and will apply only to Subscription renewals that occur after such changes in pricing terms are communicated to you. If you do not agree to AudioVitality’s pricing changes, you may choose not to renew your Subscription in accordance with “Automatic Renewal of Subscriptions Until Terminated and Procedure for Terminating a Subscription.
You acknowledge that your purchases are not contingent upon the availability of any future features or functionality or upon any public comments made by AudioVitality, either oral or written, regarding future features or functionality.
AudioVitality offers certain enhanced features that can be purchased by you through a monthly, or annual, subscription (the “Subscription”). A description of the features associated with Subscriptions is available through the Services. When you subscribe to a Subscription or purchase a Product (the subscription and purchase each being a “Transaction”), we may ask you to provide additional information relevant to the Transaction, such as your credit card number and expiration date and your billing and shipping address(es) (“Payment Information”). You represent and warrant that you are legally authorized to use all payment methods to which the Payment Information relates. Amounts due and payable for a Transaction made through the Services will be displayed before you place an order. If you choose to initiate a Transaction through the Services, you authorize us to provide your Payment Information to third party service providers to enable us to complete your Transaction and you agree (a) to pay any applicable fees and taxes, (b) that AudioVitality may charge your credit card or third party payment processing account, including your account associated with the app store or distribution platform on which the Application is made available (such as the Apple App Store, Google Play or Amazon Appstore, each an “Application Provider”), for verification, pre-authorization and payment purposes, and (c) to pay any additional fees that your Application Provider, bank or other financial service provider may charge you and any fees or taxes applicable to your order. You will receive a confirmation email once we have confirmed payment for your order. Your order is not binding on AudioVitality until accepted and confirmed by AudioVitality. No payments made may be refunded or transferred except as expressly provided in the Terms.If you have any concerns or objections regarding charges, you agree to notify us in advance and not to cancel or reject any charges to your credit card or third party payment processing account until you have attempted, within reason, to resolve the matter directly with AudioVitality. AudioVitality reserves the right not to process your order or to cancel your order under certain circumstances, such as if your credit card is declined, if we suspect that your application or order is fraudulent, or under other circumstances that AudioVitality deems appropriate in its sole discretion. AudioVitality also reserves the right, in its sole discretion, to take steps to verify your identity in connection with your order. You may be required to provide additional information (included in the definition of Payment Information) to verify your identity, prior to completing your Transaction. For orders that we do not process or cancel, AudioVitality will not charge or refund you.
Content and Rights in Content
You agree that any Services contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that You will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and You shali not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that the Application Provider is not in any way responsible for any such use by You, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that You may receive as a result of using any of the Services.
For purposes of these Terms, (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, information or other materials that are published, generated, provided or made available through the Services, (ii) “User Content” means any Content that users (including you) provide in order for such Content to be made available through the Services. Content includes, but is not limited to, User Content.
Ownership of Content
AudioVitality does not claim ownership of any User Content. Nothing in these Terms shall be deemed to limit any rights you may have to use and exploit your User Content. Subject to the foregoing, all rights in the Services and Content, including all intellectual property rights therein, belong exclusively to AudioVitality and its licensors. You acknowledge that the Services and the Content are protected by copyright, trademark and other laws of the United States and foreign countries. You agree not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices that are incorporated into or accompany the Services or the Content.
Rights in User Content Granted to AudioVitality
By making any User Content available through the Services, you hereby grant AudioVitality a non-exclusive, worldwide, royalty-free license, which may be sublicensed and transferred, to use, copy, modify, distribute, publicly display, publicly perform, publicly distribute, and create derivative works from your User Content in connection with the operation of the Services and the Content and their provision to you and other users.
Rights in Content Granted by AudioVitality
Subject to your compliance with these Terms, AudioVitality grants you a limited, non-exclusive, non-sublicensable and non-transferable license to download, listen to, view, copy and display the Content solely in connection with your authorized use of the Services and solely for your personal, non-commercial purposes.
Rights and Conditions Related to the Applications
Rights in the Application Granted by AudioVitality
Subject to your compliance with these Terms, AudioVitality grants you a limited, non-exclusive, non-sublicensable and non-transferable license to download and install one copy of the Application on a mobile device or computer owned or controlled by you and to use such copy of the Application solely for your personal, non-commercial purposes. AudioVitality reserves all rights in the Application not expressly granted to you by these Terms. You may not copy the Application except to make a reasonable number of copies for backup or archival purposes. Except as expressly provided in these Terms, you may not (i) copy, modify or create derivative works from the Application; (ii) distribute, transfer, rent, lease, loan or sublicense the Application to any third party, (iii) reverse engineer, decompile or disassemble the Application, or (iv) make the functionality of the Application available to multiple users by any means.
Additional Terms for App Store Applications
– – These Terms are between AudioVitality and you, not the Application Provider, and that, as between AudioVitality and the Application Provider, AudioVitality is solely responsible for the Application.
– The Application Provider has no obligation to provide maintenance and technical support services with respect to the Application.
– If the Application fails to conform to any applicable warranty, you may notify the Application Provider and the Application Provider will refund the purchase price of the Application (if any) and, to the fullest extent permitted by applicable law, the Application Provider will have no further warranty obligations with respect to the Application. AudioVitality shall be solely responsible for any other claims, losses, liabilities or expenses or any damages or costs attributable to any failure of an Application to comply with any warranty.
– Application Provider is not responsible for any claim you may make or any claim by any third party relating to the Application or your possession and use of the Application, including, but not limited to, (i) any product liability claim, (ii) any claim that the Application does not comply with any applicable legal or regulatory requirement, or (iii) any claim under consumer protection or similar laws.
– In the event that a third party alleges that the Application or your possession and use of the Application constitutes an infringement of such third party’s intellectual property rights, AudioVitality shall be solely responsible for the investigation, defense, settlement and termination of any such intellectual property rights infringement action to the extent required by these Terms.
– The Application Provider and its affiliates are third party beneficiaries of these Terms with respect to your license of the Application and, upon your acceptance of these Terms, the Application Provider shall have the right (and shall be deemed to have accepted the right) to enforce these Terms with respect to your license of the Application against you as a third party beneficiary.
You agree not to:
– Post, upload, publish, submit or transmit any Content that (i) infringes, misappropriates or violates any intellectual property right of any third party, including, without limitation, patent or trademark rights, copyright and moral rights, any trade secret rights, or any rights of publicity or privacy of any third party, (ii) violates, or encourages conduct that would violate, any applicable law or regulation (iii) is fraudulent, false or misleading, (iv) is defamatory, obscene, pornographic, vulgar or offensive, (v) promotes discrimination, intolerance, racism, hatred, harassment or violence against any person or group, (vi) is violent or threatening, or promotes violence or actions that threaten any person or entity, or (vii) promotes unlawful or harmful activities or promotes illegal substances;
– Use, display, or duplicate the Services or any individual item incorporated into the Services, the AudioVitality name, any AudioVitality trademark, any AudioVitality logo, or any other proprietary information or the layout and design of any page or form on any page, without the express written consent of AudioVitality;
– Access, tamper with, or use non-public areas of the Services, AudioVitality’s computer systems or AudioVitality’s providers’ technical delivery systems;
– Attempt to probe, scan, or test the vulnerability of any AudioVitality system or network or to breach any security or authentication measures;
– Circumvent, including but not limited to avoiding, bypassing, removing, disabling, impairing or decrypting, any technological measures implemented by AudioVitality, any AudioVitality provider or any other third party (including another user) to protect the Services;
– Attempt to access the Services, search the Services, or download Collective Content from the Services through any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or similar tools) except for search software and/or agents provided by AudioVitality or other generally accessible third party web browsers;
– Send any unsolicited or unauthorized solicitation, including, but not limited to, advertising, promotional materials, email, junk mail, spam, chain letters, or any other form of solicitation;
– Use any meta-tag or other hidden text or meta-data to use any AudioVitality trademark, logo URL, or product name, without AudioVitality’s express written consent;
– Use the Services for any commercial purpose or for the benefit of any third party or in any other manner not permitted by these Terms;
– Forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting, or otherwise use the Services to send information that is false, misleading, or altered in any way;
– Attempt to decode, decompile, disassemble or reverse engineer any software used to provide the Services;
– Interfere or attempt to interfere with any user’s, host’s or network’s access to the Services, including, without limitation, via means of submitting a virus or spam, overloading, overwriting or mail-bombing the Services;
– Collect or store from the Services any information that identifies other users of the Services without their express permission;
– Impersonate any person or misrepresent your affiliation with any person or entity;
– Violate any applicable law or regulation; or
– Encourage or permit any other person to engage in any of the foregoing activities.
While we are not obligated to monitor access to or use of the Services or Content, or to review or edit any Content, we have the right to do so for purposes of operating the Services, ensuring compliance with these Terms, and complying with applicable laws and regulations. We reserve the right, but are not obligated, to remove or disable access to any Content at any time without notice, including if we determine in our sole discretion that any Content is objectionable or violates these Terms. We have the right to investigate violations of these Terms and any conduct that affects our Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Links to Third Party Websites or Resources
The Services and the Application may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services available on such websites or resources or for the links posted on such websites. You acknowledge that you are solely responsible for, and bear all risks associated with, your use of any third-party websites or resources.
termination at any time without notice. You may terminate your Account at any time by emailing us at firstname.lastname@example.org. If you purchase a Subscription through an Application Provider, you must also terminate your Subscription directly with the Application Provider. After termination, discontinuance or cancellation of the Services or your Account, all provisions of these Terms that by their nature should remain in effect, including, without limitation, provisions relating to ownership, disclaimer of warranties, limitations of liability and dispute resolution, will remain in effect.
Disclaimer of Warranties
The Services, Products and Content are provided “as is” without warranty of any kind. Without limiting the foregoing, we expressly disclaim all warranties of merchantability, fitness for a particular purpose, quiet enjoyment or non-infringement and all warranties arising from a course of dealing or usage of trade.
We do not warrant that the Services or Products will meet your requirements or be available on an uninterrupted, secure or error-free basis. We make no warranty as to the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
You will indemnify and hold AudioVitality and its officers, directors, employees and agents harmless from and against any and all claims, demands, liabilities, losses or expenses, including without limitation reasonable legal and accounting fees, that arise directly or indirectly from (i) your access to or use of the Services or the Content, or (ii) your violation of these Terms.
Limitation of Liability
In no event shall AudioVitality’s liability arising directly or indirectly out of these Terms, the use of or inability to use the Services, Products or Content exceed the amounts paid by you to AudioVitality for the use of the Services, Products or Content or the sum of fifty U.S. dollars ($50),The exclusions and limitations of damages set forth above are essential elements of the contract between AudioVitality and you.
You may not use or otherwise export or re-export the Application except as authorized by Swiss law and the laws of the jurisdiction in which the Application was obtained”
Legal & Compliance:
You must 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 Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties; and that you are located in Switzerland.
The laws of Switzerland govern this license and your use of the Application.
In addition, the clauses contained in the Terms & Conditions of the Application Provider’s website will apply directly or by analogy.
Local restrictions – provision of cross-border services
We draw your attention to the fact that AudioVitality SA (“AudioVitality”] is a company currently incorporated only in Switzerland under the legislation of Swiss Law.
This application may however contain information about services and products that may be considered by foreign Authorities as not appropriate or illegal.
Therefore by downloading this mobile application you confirm that you have read and understood this legal information and that you have downloaded this application and will check the services provided in it on your own initiative and in compliance with your local applicable Law, under your own responsibility and with no responsibility of AudioVitality regarding your local regulations.
These Terms and any action relating to them shall be governed by the laws of Switzerland, without regard to its conflict of law provisions.
Acceptance of Arbitration
AudioVitality and you agree that any dispute, claim or controversy arising directly or indirectly out of these Terms, the breach, termination, enforcement, interpretation or validity hereof, or the use of the Services, Products or Content (together, “Disputes”) shall be decided by binding arbitration, but that each party retains the right (i) to bring an individual action in a court adjudicating minor disputes and (ii) to seek injunctive or compensatory relief in a court of competent jurisdiction to prevent infringement, threatened infringement, misappropriation, or violation of its copyright, trademark, trade secret, party patent, or other intellectual property rights (the action described in this clause (ii) being an “Intellectual Property Protection Action”). Without limiting the foregoing sentence, you will also have the right to bring any other Dispute to court upon notifying AudioVitality in writing of your desire to do so by emailing support@AudioVitality.com within thirty (30) days of the date you first agree to these Terms (such notice being a “Notice of Refusal to Arbitrate”). If you do not provide AudioVitality with an Arbitration Refusal Notice within such thirty (30) day period, you will be deemed to have knowingly and willfully waived your right to bring any Dispute to court, except as provided in clauses (i) and (ii) above. If you provide AudioVitality with a timely Notice of Refusal to Arbitrate, the courts of competent jurisdiction for any Intellectual Property Protection Action shall be the Swiss courts located at AudioVitality SA’s headquarters in the Canton of Vaud, Switzerland, and each of the parties hereto waives any objection to such courts. Unless you provide AudioVitality with a timely Notice of Refusal to Arbitrate, **you acknowledge and agree that AudioVitality and you each waive your right to a trial and your right to participate as a plaintiff or class member in any purported class action or representative action**. Further, unless you and AudioVitality agree otherwise in writing, the arbitrator may not consolidate the claims of more than one person or arbitrate any form of class or representative action. If this paragraph is held to be inapplicable, the entire “Dispute Resolution” section shall be deemed null and void. Except as provided in the preceding sentence, the “Dispute Resolution” section shall survive any termination of these Terms.
Arbitration shall be governed by the rules of arbitration, which shall govern the interpretation and application of this section.
The party wishing to arbitrate must submit a written Request for Arbitration to the other party. The arbitrator shall be either a third party agreed to by both parties. The arbitrator shall be selected by the parties from among mediation and arbitration professionals. If the parties fail to agree on an arbitrator within thirty (30) days of delivery of the Request for Arbitration, the claim shall be transferred to the Justice of the Peace in Lausanne, Vaud, Switzerland.
Venue and Arbitration Procedure
Unless you and AudioVitality agree otherwise, the arbitration will be conducted remotely from Switzerland. If your claim does not exceed CHF 10,000, the arbitration will be conducted solely on the basis of the documents you and AudioVitality submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary.
The arbitrator will make an award within 90 days. The award will include the essential findings and conclusions on which the arbitrator based the award. The arbitrator’s award will be subject to a signed agreement by both parties to settle the dispute. The damages assessed by the arbitrator shall be consistent with the provisions of the “Limitation of Liability” section above with respect to the types and amounts of damages a party may be required to pay. The arbitrator may grant declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide the relief warranted by the claimant’s individual claim.
Costs of Arbitration
No costs shall be borne by the other party. The costs of the arbitration shall be stated in the agreement.
Notwithstanding the provisions of the “Changes to the Terms or Services” section above, if AudioVitality changes the “Dispute Resolution” section after the date you first agreed to these Terms (or agreed to any subsequent changes to these Terms), you may opt out of such modification by providing us with written notice (including by email to email@example.com) within 30 days of the effective date of such modification as set forth in the “Last Updated” date at the beginning of these Terms or the date of AudioVitality’s email notifying you of such modification. By rejecting any modification, you agree to submit any Dispute between AudioVitality and you to arbitration in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent modifications to these Terms).
These Terms constitute the entire and exclusive understanding and agreement between AudioVitality and you with respect to the Services, Products and Content, and these Terms supersede any prior agreements, oral or written, between AudioVitality and you with respect to the Services, Products and Content. If any provision of these Terms is found to be invalid or unenforceable (either by an arbitrator appointed in accordance with the terms of the “Arbitration” section above, or by a court of competent jurisdiction, but only if you timely decline arbitration by sending us a Notice of Refusal to Arbitrate, in accordance with the terms set forth above), that provision will apply to the fullest extent permitted and the remaining provisions of these Terms will remain in full force and effect. You shall not assign or transfer these Terms, whether by operation of law or otherwise, without the prior written consent of AudioVitality. Any attempt by you to assign or transfer these Terms without such consent will be null and void. AudioVitality may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will be binding upon and enure to the benefit of the parties, their successors and permitted assigns. All notices and other communications given by AudioVitality under these Terms, including those regarding changes to these Terms, shall be given (i) by email from AudioVitality or (ii) by posting on the Services. In the case of notices given by email, the date of receipt will be deemed to be the date the notice is sent.AudioVitality’s failure to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. The waiver of such right or provision will be effective only if in writing and signed by a duly authorized representative of AudioVitality. Except as expressly set forth in these Terms, the exercise by either party of any remedy available to it under these Terms shall be without prejudice to any other remedy available to it, including, without limitation, under these Terms.
If you have any questions about these Terms, the Services or the Products, please contact AudioVitality at contact@AudioVitality.com