Last Updated: February 24th, 2023
Welcome, and thank you for your interest in Tuned Care, Inc. (“Tuned,” “we,” “us,” or “our”). These Terms of Service are a legally binding contract between you and Tuned regarding your use of the Service. As used in these Terms of Service, the term “Service” means our applications and website at https://www.tunedcare.com/ (or any successor domains), along with our related websites, networks, and other technology platform-related services provided directly by us. For clarity, “Service” excludes any material, services, products, or information provided to you by any party other than us (e.g., any Provider, as defined in Section 1). If you access and use the Service as a Provider, you also must agree to and be bound by the Provider-specific terms that we will make available to you during the Provider account creation process.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY CLICKING “I ACCEPT,” OR OTHERWISE 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, THE FOLLOWING TERMS AND CONDITIONS (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND TUNED’S PROVISION OF THE SERVICE TO YOU, CONSTITUTE AN AGREEMENT BY TUNED AND BY YOU TO BE BOUND BY THESE TERMS.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 19, you agree that disputes arising under these Terms will be resolved by binding individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND TUNED ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 19.)
- Tuned Service Overview. The Service is designed to help connect individuals with licensed audiologists who are independent contractors and who may offer screenings and consultations through our technology platform (“Providers”). The Service also may provide you with information or access to certain products supplied by third parties, as well as information about or products and services.
- Eligibility. By agreeing to these Terms, you represent, warrant, and covenant to us that: (a) either you are at least 18 years of age or have been authorized to use the Service by your parent or legal guardian who is at least 18 years of age and who agrees to these Terms and will supervise your use of the Service; (b) you have not previously been suspended or removed from the Service; and (c) your use of the Service is in compliance with any and all applicable laws and regulations.
- Provider Independence. WITHOUT LIMITING ANY OTHER TERMS IN THESE TERMS:
THE SERVICE, AND ALL MATERIALS AND CONTENT PROVIDED BY TUNED ON OR THROUGH THE SERVICE, DO NOT CONSTITUTE MEDICAL OR CLINICAL PROFESSIONAL ADVICE, DIAGNOSIS, OR TREATMENT OF ANY MEDICAL CONDITION OR HEALTH PROBLEM.
YOUR INTERACTIONS WITH ANY PROVIDER (INCLUDING DURING SCREENINGS, CONSULTATIONS, MESSAGING, OR ANY PROVISION OF CARE IN CONNECTION WITH THE SERVICE (EACH, A “Consultation”)), AND ANY OPINIONS, RECOMMENDATIONS, MATERIALS, INFORMATION, OR OTHER TERMS, CONDITIONS, WARRANTIES OR REPRESENTATIONS MADE AVAILABLE TO YOU BY ANY PROVIDER (INCLUDING IN CONNECTION WITH ANY CONSULTATIONS), ARE SOLELY BETWEEN YOU AND THE PROVIDER.
YOU ARE NOT REQUIRED TO USE ANY PROVIDER OR ANY PRODUCT MADE AVAILABLE VIA THE SERVICE OR THROUGH ANY INTERACTION YOU HAVE WITH A PROVIDER. YOU MUST EXERCISE DUE DILIGENCE AND CARE WHEN DECIDING WHETHER TO ENGAGE WITH A PROVIDER.
TUNED DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR OTHER COMMITMENTS OR GUARANTEES IN CONNECTION WITH ANY PROVIDER, OTHER USERS YOU MAY ENCOUNTER, OR ANY INFORMATION, SERVICE, OR PRODUCTS PROVIDED BY A THIRD PARTY ON THE SERVICE. WITHOUT LIMITING THE FOREGOING, TUNED DOES NOT ENDORSE ANY PARTICULAR PROVIDER, PRODUCT, OR TREATMENT METHOD OR TECHNIQUE, AND SHALL IN NO EVENT BE LIABLE TO YOU OR TO ANYONE FOR ANY DECISION MADE OR ACTION TAKEN OR NOT TAKEN BY ANY PARTY IN RELIANCE ON INFORMATION ARISING FROM ANY USE OF THE SERVICE (INCLUDING ANY INTERACTIONS OR CONSULTATIONS WITH PROVIDERS).
YOU AGREE THAT ANY PROVIDER YOU CONSULT WITH VIA THE SERVICE WILL BE SOLELY AND EXCLUSIVELY RESPONSIBLE AND LIABLE FOR ALL TREATMENT DECISIONS AND PROFESSIONAL OR AUDIOLOGICAL SERVICES AND INFORMATION (INCLUDING ANY DECISION TO OFFER SUCH SERVICES OR INFORMATION TO ANY PARTICULAR USER), AND TUNED WILL NEITHER HAVE NOR EXERCISE ANY CONTROL OR DISCRETION OVER THE METHODS BY WHICH ANY PROVIDER PRACTICES MEDICINE OR AUDIOLOGY.
NOTHING IN THESE TERMS WILL BE CONSTRUED TO ALTER OR OTHERWISE AFFECT THE LEGAL, ETHICAL OR PROFESSIONAL RELATIONSHIPS BETWEEN AND AMONG YOU AND PROVIDERS, NOR DOES ANYTHING IN THESE TERMS ABROGATE ANY RIGHT, PRIVILEGE, OR OBLIGATION ARISING FROM OR RELATED TO THE PHYSICIAN-PATIENT RELATIONSHIP.
- No Endorsement; Third-Party Obligations. Tuned may make certain products available for purchase through the Service, and it may receive compensation as the result of sales through the Service of certain products. The Service’s listing or identification of a product is for informational purposes only and in no way constitutes Tuned’s recommendation or guarantee of the fitness of a product for any particular purpose, nor does it constitute an endorsement, sponsorship, approval, or affiliation by Tuned of any product or any affiliation between Tuned and the product provider. All products ordered through the Service are delivered to you by a third-party, and Tuned is not the manufacturer or supplier of any such products. YOU ARE NOT OBLIGATED TO BUY OR USE ANY PRODUCTS, AND YOU MAY PURCHASE THROUGH ANOTHER STORE OR VENDOR. YOUR DECISION TO NOT BUY ANYTHING WILL NOT IMPACT OTHER SERVICES PROVIDED THROUGH THE PLATFORM. IF THERE IS ANY PROBLEM WITH THE DELIVERY, FUNCTIONALITY, OR OTHERWISE WITH RESPECT TO ANY PRODUCT THAT YOU PURCHASE THROUGH THE SERVICE, YOU MUST CONTACT THE SUPPLIER OF THE PRODUCT DIRECTLY, AND TUNED HAS NO OBLIGATION OR LIABILITY TO YOU WHATSOEVER WITH RESPECT TO ANY SUCH ISSUES.
- Accounts and Registration. To access certain features of the Service, you will need to register for an account. When you register for an account, you may be required to provide us with some information about yourself. 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. You are solely responsible for maintaining the confidentiality of your account, 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 support@TunedCare.com.
- Payment and Fees. You may be required to pay fees for your access to certain products, experiences, and functionalities on or available through the Service. All fees and accepted payment methods will be identified in the applicable portion of the Service. We may change the fees and accepted payment methods at any time with prior notice to you. If your employer offers Tuned access and benefits as part of a benefit plan, fees and payment may be subject in whole or part to that plan, and you are solely responsible for coordinating with your employer to understand who is responsible for what fees. If you are a Provider, please see the Provider Terms of Service (available through your Provider account) for additional terms applicable to fees. You must pay all fees due without set-off, deduction, or reduction of any kind or for any reason.
- Licenses
Limited License. Subject to your complete and ongoing compliance with these Terms, Tuned grants you, as a user in any capacity other than as a Provider, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) access and use the Service; and (b) access and use any content we make available to you on the Service, in the case of clause (a) and (b) solely for your personal, non-commercial use.
License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
- Feedback. If you provide any ideas, input, suggestions, or feedback to us regarding the Service, Tuned, or our business (including any regarding your experience using or impressions regarding, or proposed modifications or improvements to, the Service) (collectively, “Feedback”), then you hereby grant Tuned a perpetual, irrevocable, non-exclusive, transferable, fully-paid, royalty-free, and worldwide right, with the right to grant and authorize sublicenses, to use, modify, disclose, and otherwise exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services, without limitation, restriction, or any fees or credit due to you.
- Ownership; Proprietary Rights. The Service is owned and operated by Tuned. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, content, and all other elements of the Service (“Materials”) provided by Tuned are protected by intellectual property and other laws. All Materials included in the Service are the property of Tuned or its third-party licensors. Except as expressly authorized by Tuned, you may not otherwise make use of the Materials. Tuned reserves all rights to the Materials not granted expressly in these Terms.
- Third-Party Terms
Third-Party Services and Linked Websites. Tuned may provide tools through the Service that enable you to transmit information to or through third-party services. By using one of these tools, you agree that Tuned may transfer that information to or through the applicable third-party service. Third-party services are not under Tuned’s control, and, to the fullest extent permitted by law, Tuned is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under Tuned’s control, and Tuned is not responsible for their content.
Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses. - User Content
11.1. User Content Generally. Certain features of the Service may permit users to transmit content to the Service, including responses to survey questions regarding your experience and other materials depicted therein, Consultations, private messages with other users (including between users and Providers), educational content uploaded to Tuniversity, and other content (collectively, “User Content”). You own the User Content that you transmit to the Service.
11.2. Limited License Grant to Tuned. By transmitting User Content to or via the Service or responding to survey questions regarding your experience with the service and any other user, you grant Tuned a non-exclusive, perpetual, irrevocable, transferable, sublicensable (through various tiers), royalty-free, and worldwide right and license, to the fullest extent permitted by law, to use, host, store, reproduce, create derivative works of, transfer, display, perform, modify, and distribute your User Content to provide the Service and as further described in our Privacy Policy.
11.3. User Content Representations and Warranties. Tuned disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:
a. you have the necessary licenses, rights, consents, and permissions to authorize Tuned to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Tuned, the Service, and these Terms; and
b. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) 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; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Tuned to violate any law or regulation; and
c. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
11.4. User Content Disclaimer. We are under no obligation to edit or control User Content transmitted to the Service, and will not be in any way responsible or liable for User Content. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Tuned with respect to User Content.
11.5. Monitoring Content. You acknowledge and agree that Tuned reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes, but Tuned has no obligation to do so. If at any time Tuned chooses to monitor the content, Tuned still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy.
- Digital Millennium Copyright Act
12.1. DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
Tuned Care, Inc.
320 7th Ave #291
Brooklyn, NY 11215
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyrighted work or other intellectual property that you claim has been infringed;
c. a description of the material that you claim is infringing and where it is located on the Service;
d. your address, telephone number, and email address;
e. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the intellectual property owner or authorized to act on the intellectual property owner’s behalf.
12.2. Repeat Infringers. Tuned will promptly terminate the accounts of users that are determined by Tuned to be repeat infringers.
- 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. harass, threaten, demean, embarrass, or otherwise harm any other user of the Service;
c. violate, or encourage others to violate, any right of a third-party, including by infringing or misappropriating any third-party intellectual property right;
d. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) 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;
e. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third-party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
f. 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;
g. sell or otherwise transfer the access granted under these Terms or any Materials or any right or ability to view, access, or use any Materials; or
h. attempt to do any of the acts described in this Section 13 or assist or permit any person in engaging in any of the acts described in this Section 13.
- Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time upon at least 7 days advance notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 14, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
- Term, Termination and Modification of the Service
15.1. Term. These Terms are effective beginning when you first access or use the Service, and ending when terminated as described in Section 15.2.
15.2. Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Tuned 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. You may terminate your account and these Terms at any time by closing your account through your account settings.
15.3. Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service (c) you must pay Tuned any unpaid amount that was due prior to termination; and (d) the following Sections, and all defined terms used in those Sections for purposes of interpreting those Sections, will survive: 2, 3, 4, 5, 6, 7.2, 8, 9, 10, 11.2, 13, 14, 15.3, 16, and 17-20.
15.4. Modification of the Service. Tuned reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you, to the fullest extent permitted by applicable law. Tuned will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
- Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Tuned and its officers, directors, employees, consultants, affiliates, subsidiaries, and agents (together, the “Tuned Entities”) from and against every claim brought by a third-party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected 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; or (d) any 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.
- Disclaimers; No Warranties. THE FOLLOWING TERMS APPLY TO THE FULLEST EXTENT BY LAW:
THE SERVICE AND ALL ITEMS, MATERIALS, OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TUNED DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL ITEMS, MATERIALS, OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. TUNED DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY ITEMS, MATERIALS, OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND TUNED 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 TUNED ENTITIES OR ANY ITEMS, MATERIALS, OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY.
WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER OR ANY ITEMS, MATERIALS, OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE. 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 PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE PRODUCT USED IN CONNECTION WITH THE SERVICE), ANY LOSS, USE, OR DISCLOSURE OF DATA, INCLUDING USER CONTENT.
WITHOUT LIMITING ANY OTHER TERMS SET FORTH IN THESE TERMS:
· TUNED IS NOT A HEALTH INSURANCE COMPANY AND DOES NOT PROVIDE YOU WITH HEALTH INSURANCE BENEFITS. YOU ARE SOLELY RESPONSIBLE FOR IDENTIFYING AND UNDERSTANDING ANY THIRD PARTY PLANS OR BENEFITS YOU MAY HAVE THAT PERTAIN TO HEALTHCARE.
· TUNED HAS NO RESPONSIBILITY TO COORDINATE WITH YOUR EMPLOYER OR ANY THIRD PARTY IN CONNECTION WITH ANY OTHER BENEFITS OR PLANS YOU MAY HAVE THAT PERTAIN TO HEALTHCARE. YOU ARE SOLELY RESPONSIBLE FOR ALL SUCH COORDINATION.
· YOU UNDERSTAND THAT FEES YOU MAY BE OBLIGATED TO PAY IN CONNECTION WITH THESE TERMS DO NOT INCLUDE AND DO NOT COVER FEES THAT YOU MAY OWE TO ANY TREATMENT PROFESSIONAL OTHER THAN ANY PROVIDER.
- Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW:
IN NO EVENT WILL THE TUNED ENTITIES 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 ITEMS, MATERIALS, OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY TUNED ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 19.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE TUNED ENTITIES 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 $50.
IN PROVIDING THE SERVICE, TUNED PROVIDES A DIGITAL COMMUNICATION PLATFORM WHICH IS DESIGNED TO FACILITATE YOUR ACCESS TO HEARING HEALTH INFORMATION AND YOUR COMMUNICATION WITH OTHER USERS. TUNED DOES NOT ENGAGE IN THE PRACTICE OF MEDICINE OR PROVIDE ANY HEALTH SERVICES, BUT YOU CAN USE THE TUNED PLATFORM AND ITS COMMUNICATION TOOLS TO INTERACT WITH PROVIDERS, WHO CAN PROVIDE CONSULTATION AND SCREENING SERVICES TO YOU (OR, FOR PROVIDERS, TO INTERACT WITH PATIENTS). TUNED DOES NOT MONITOR OR OTHERWISE INTERFERE WITH THE PROFESSIONAL SERVICES PROVIDED BY PROVIDERS. PROVIDERS ARE SOLELY RESPONSIBLE FOR THE SERVICES THEY PROVIDE VIA THE SERVICE, INCLUDING ANY DETERMINATION OF WHETHER SUCH SERVICES MAY BE PROVIDED TO A USER IN ANY SPECIFIC LOCATION OR JURISDICTION, AND ANY CONTENT OR INFORMATION COMMUNICATED BY SUCH PROVIDERS. PROVIDERS MAY ACCEPT OR DECLINE TO PROVIDE THEIR PROFESSIONAL SERVICES TO ANY USER IN THEIR SOLE DISCRETION. TUNED DOES NOT GUARANTEE, MONITOR, OR VERIFY THE ACCURACY, RELIABILITY, OR COMPLETENESS OF ANY INFORMATION, CONTENT, COMMUNICATION, OR PROFESSIONAL SERVICES PROVIDED BY ANY USER (INCLUDING ANY RECOMMENDATIONS BY A PROVIDER TO PURCHASE OR OBTAIN ANY PRODUCT) AND YOU EXPRESSLY WAIVE AND RELEASE TUNED FROM ANY AND ALL LIABILITY, CLAIMS, OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO YOUR CONSULTATIONS AND INTERACTIONS WITH PROVIDERS OR ANY OTHER USERS OF THE SERVICE.
TUNED WILL NOT BE A PARTY TO DISPUTES OR NEGOTIATIONS OF DISPUTES, INCLUDING CLAIMS OF PROFESSIONAL MALPRACTICE, BETWEEN PROVIDERS AND USERS. RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING SERVICES OFFERED VIA THE SERVICE (WITH ALL THEIR IMPLICATIONS) RESTS SOLELY WITH YOU.
THE QUALITY OF CONSULTATIONS SCHEDULED THROUGH THE USE OF THE SERVICE IS ENTIRELY THE RESPONSIBILITY OF THE PROVIDER WHO ULTIMATELY PROVIDES THE CONSULTATION. YOU UNDERSTAND THAT BY USING THE SERVICE, YOU MAY BE EXPOSED TO SITUATIONS THAT ARE POTENTIALLY OFFENSIVE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE SERVICE AT YOUR OWN RISK.
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 18 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Dispute Resolution and Arbitration
19.1. Generally. In the interest of resolving disputes between you and Tuned in the most expedient and cost effective manner, and except as described in Sections 19.2 and 19.3, you and Tuned agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, 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. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND TUNED ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
19.2. Exceptions. Despite the provisions of Section 19.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
19.3. Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 19 within 30 days after the date that you agree to these Terms by sending a letter to Tuned Care, Inc., Attention: Legal Department – Arbitration Opt-Out, 320 7th Ave #291, Brooklyn, NY 11215, 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 Tuned receives your Opt-Out Notice, this Section 19 will be void and any action arising out of these Terms will be resolved as set forth in Section 21.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
19.4. Arbitrator. Any arbitration between you and Tuned will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Tuned. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
19.5. Notice of Arbitration; Process. A party who intends to seek arbitration 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”). Tuned’s address for Notice of Arbitration is: Tuned Care, Inc., 320 7th Ave #291, Brooklyn, NY 11215. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) 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 Tuned may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Tuned must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Tuned in settlement of the dispute prior to the award, Tuned will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
19.6. Fees. If you commence arbitration in accordance with these Terms, Tuned will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Alameda County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Tuned for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. 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. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
19.7. No Class Actions. YOU AND TUNED 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. Further, unless both you and Tuned agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
19.8. Modifications to this Arbitration Provision. If Tuned makes any future change to this arbitration provision, other than a change to Tuned’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Tuned’s address for Notice of Arbitration, in which case your account with Tuned will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
19.9. Enforceability. If Section 19.7 or the entirety of this Section 19 is found to be unenforceable, or if Tuned receives an Opt-Out Notice from you, then the entirety of this Section 19 will be null and void and, in that case, exclusive jurisdiction and venue described in Section 21.2 will govern any action arising out of or related to these Terms.
- Privacy and Information Security
20.1. Privacy Policy. You acknowledge and agree that except as described in these Terms, any User Content, data, and information you enter into the Service or that we collect in connection with the Service (“Data”) will be collected, used, disclosed, and protected as described in the Tuned Privacy Policy available at www.TunedCare.com/privacy-policy. Please read the Privacy Policy carefully.
20.2. Data. As between you and Tuned, Data is and will remain owned by you. You hereby grant Tuned the right to collect, process, transmit, store, use, and disclose Data to provide the Service and as otherwise set forth in this Agreement and the Tuned Privacy Policy.
20.3. Use of Aggregated Data. You acknowledge and agree that Tuned may collect, create, process, transmit, store, use, and disclose aggregated and/or de-identified data derived from Data or use of the Services (“Aggregated Data”) for its business purposes, including for industry analysis, benchmarking, and analytics. All Aggregated Data will be in an aggregated and/or de-identified form only and will not identify you.
20.4. Compliance. You are solely responsible (a) for Data as entered, supplied, accessed, or used by you and (b) for complying with any privacy and data protection laws and regulations applicable to Data or your use of the Services. You represent and warrant that you have obtained and will maintain all rights, consents, and authorizations required to grant Tuned the rights and licenses set forth in this Section 20 and to enable Tuned to exercise its rights under the same without violation or infringement of the rights of any third-party.
- Miscellaneous
21.1. General Terms. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms (including, for Providers, the Provider Terms of Service available through your Provider account), are the entire and exclusive understanding and agreement between you and Tuned 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 at any time without notice or consent. 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, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
21.2. Governing Law. These Terms are governed by the laws of the State of New York without regard to conflict of law principles. You and Tuned submit to the personal and exclusive jurisdiction of the state courts and federal courts located within New York County, New York, for resolution of any lawsuit or court proceeding permitted under these Terms.
21.3. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines that we may post on the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms. If there is any conflict or inconsistency between these Terms and any Additional Terms, these Terms will apply to the extent of the conflict or inconsistency unless the Additional Terms expressly state that they control to the extent of that conflict or inconsistency.
21.4. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
21.5. Contact Information. You may contact us by sending correspondence to 320 7th Ave #291, Brooklyn, NY 11215 or by emailing us at support@tunedcare.com.
21.6. Notice to California Residents. If you are a California resident, 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 S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
21.7. 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.
21.8. International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
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