Effective Date: 06/06/2023
PLEASE READ THESE TERMS AND CONDITIONS OF USE (“TERMS”) CAREFULLY. THESE TERMS ARE LEGALLY BINDING AND GOVERN THE AGREEMENT BETWEEN YOU AND US, SOUND UNITED LLC D/B/A MASIMO CONSUMER, THAT YOU FORM BY ACCESSING OR USING ANY AREA OR FEATURE OF ANY WEBSITE THAT WE OPERATE AND THAT LINKS TO THESE TERMS (“WEBSITE”). BY ACCESSING OR USING THE WEBSITE, YOU AGREE TO BE BOUND BY ALL TERMS SET FORTH IN THESE TERMS. YOUR CONTINUED ACCESS OR USE OF THE WEBSITE FOLLOWING CHANGES TO THESE TERMS WILL CONSTITUTE YOUR ACCEPTANCE OF ANY CHANGES TO THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT USE THE WEBSITE. BY ACCESSING THE WEBSITE, YOU WARRANT THAT YOU ARE AT LEAST THE AGE OF MAJORITY IN THE JURISDICTION IN WHICH YOU ARE LOCATED AND RESIDE, IF DIFFERENT. IF YOU DO NOT AGREE WITH THESE TERMS, YOU SHOULD IMMEDIATELY EXIT THE WEBSITE.
You agree and understand that the Website, including any and all content, features, pricing, or product available through the Website, may be modified at any time, in our sole discretion, without prior notice to you. We reserve the right to modify these Terms at any time without prior notice to you. We ask that you read these Terms carefully each time you use the Website. All changes to these Terms will be effective from the date posted. By using the Website after any change, you accept and agree to the changes. So long as you comply with the Terms, we grant you a limited, non-exclusive, non-transferable privilege that is personal in nature to enter and use the Website.
You are prohibited from: (a) any resale or commercial use of the content on the Website; (b) the collection and use of any product listing or description on the Website; or (c) use of any data mining, bots, or similar data gathering and extraction methods on the Website.
(a) Purpose. The term “Dispute” means any dispute, claim, or controversy, except as specifically excluded in Section 15(b) below, between you and us, or any of our Related Parties relating to your relationship with us or our affiliates, your use of the Products, our privacy practices, or the interpretation, application, or enforcement of these Terms (including the validity, enforceability or scope of this Section 14), whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory. The term Dispute is to be given the broadest possible meaning that will be enforced. If any Dispute should arise between you and us, or any of our Related Parties that cannot be resolved through negotiation within the time frame described in the “Notice of Dispute” clause below, you and we agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this Section 14, and not litigate any Dispute in court, except for those matters listed in the Exclusions from Arbitration clause. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
(b) Exclusions from Arbitration. You and we agree that the following causes of action and/or claims for relief are exceptions to the Disputes covered by the arbitration agreement and will be brought in a judicial proceeding in a court of competent jurisdiction (as outlined in this arbitration agreement): (i) any claim or cause of action alleging actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) any claim or cause of action seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack); or (iii) a request for the remedy of public injunctive relief, where such remedies are permitted and cannot be waived by applicable law. You or we may alternatively bring Disputes in small claims court, to the extent a dispute meets such requirements.
(c) Opt-Out Right. YOU HAVE THE RIGHT TO OPT OUT OF BINDING ARBITRATION AND THE CLASS ACTION WAIVER WITHIN 60 DAYS. If you do not wish to be bound by the binding arbitration and class action waiver in this section, you must notify us in writing within 60 days of the date that you accept, or anyone acting on your behalf accepts, these Terms unless a longer period is required by applicable law (the “Opt-Out Deadline”). Your written notification must be sent to [email protected] and must include: (1) your name, (2) your address, (3) the email address associated with your online account with us, if you have one, and (4) a clear statement that you do not wish to resolve Disputes with us through individual arbitration.
In order to validly terminate the arbitration agreement, we must receive your opt-out notice no later than 3 days after the Opt-Out Deadline for it to be valid. You agree that you must pursue any claim in arbitration or small claims court if we do not receive an opt-out notice from you, or if we receive an opt-out notice from you more than 3 days after the Opt-Out Deadline. If the opt-out notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the opt out notice on your behalf. To use or assert your opt-out notice to contest the transfer of any Dispute to arbitration or to compel arbitration of any Dispute, you hereby agree to keep and present proof of your opt-out notice and its compliance with the procedures detailed in these Terms. You agree that failure to keep and provide this proof will forfeit your ability to rely on your opt-out notice to contest arbitration.
If, after your initial acceptance of these Terms, you have not submitted an opt-out notice by the Opt-Out Deadline, then you are bound by the binding arbitration and class action waiver provisions in these Terms. In the event that these Terms have not been modified or amended, and you subsequently communicate or reaffirm your acceptance to these Terms at a later time, this Opt-Out Right in this Section 14(c) shall not apply to that communication or reaffirmation. In the event these Terms are modified or amended, you may notify us in writing, and pursuant to the procedures listed above in this Section 14(c), within 60 days of the date that you accept the modifications or amendments to these Terms, that you choose to opt out of the modifications and amendments, but only with regard to the modifications or amendments, if any, that alter the arbitration and/or class action waiver provisions in these Terms.
(d) Notice of Dispute. IF YOU HAVE A DISPUTE WITH US, YOU MUST SEND WRITTEN NOTICE TO [email protected] TO GIVE US THE OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION. Your notice must contain the following information: (1) your name, (2) your address, (3) your email address or phone number associated with your account, (4) your online membership ID, if any, (5) a brief description of the nature of the complaint, and (6) the resolution sought (together, the “Required Information”). If your notice does not contain all of the Required Information (or an explanation of why you are unable to include any of the Required Information), then the Notice of Dispute shall be without effect, and must be resent before any arbitration or other legal action may be initiated against us. This requirement is intended to inform us that you have a Dispute to be resolved. You and we agree to negotiate resolution of the Dispute in good faith for no less than 60 days after you provide notice of the Dispute. All negotiations under this Section will be confidential and will be treated as compromise and settlement negotiations under all applicable laws. If you and we do not resolve the Dispute within 60 days from receipt of your notice of the Dispute, you or we may pursue a claim in arbitration pursuant to the terms in this section.
(e) CLASS ACTION WAIVER. YOU AND WE AGREE THAT ARBITRATION WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND WE SPECIFICALLY AGREE TO DO SO IN WRITING, EXCEPT AS OTHERWISE DESCRIBED BELOW IN THIS PARAGRAPH AND THIS SECTION 14. IF APPLICABLE LAW PRECLUDES ENFORCEMENT OF THE LIMITATION IS THIS PARAGRAPH AS TO A PARTICULAR REMEDY, THEN A CLAIM SEEKING THAT REMEDY (AND ONLY THAT REMEDY) MUST BE SEVERED FROM THE ARBITRATION AND BROUGHT IN COURT.
In addition to the AAA Rules, you and we agree that upon motion of one or more affected parties, and after providing all other affected parties an opportunity to be heard, the arbitrator may, in its discretion, coordinate more than one arbitration proceeding initiated under this arbitration agreement, in order to promote efficiency in discovery and to avoid inconsistent legal rulings. For the avoidance of doubt, any coordination under the preceding sentence will be limited only to currently pending arbitrations initiated under these Terms, and the arbitrator may not preside over any form of a representative or class proceeding. All parties will retain the right to request an individualized hearing.
If a court or arbitrator determines, in an action between you and us where you purport to bring a class action, that this class action waiver is unenforceable, this arbitration agreement will not apply to you. If you opt out of the arbitration agreement as specified above, this class action waiver will not apply to you. Neither you, nor any other user, can be a class representative, class member, or otherwise participate in a class, consolidated or representative proceeding without having complied with the opt-out procedure set forth above.
(f) Initiation of Arbitration/Selection of Arbitrator. If you and we are unable to resolve a Dispute through the pre-dispute negotiation process, you or we may then, and only then, initiate an arbitration proceeding with the American Arbitration Association (“AAA”), in accordance with the rules of the AAA (as applicable, and as modified by this Section 14), including the Commercial Arbitration Rules and Consumer Arbitration Rules, as applicable (the “AAA Rules”). The AAA Rules and information about arbitration and fees are available online at www.adr.org or by calling 1-800-778-7879. The terms of this section govern in the event they conflict with the AAA Rules. Should the AAA decline to administer the arbitration or otherwise be unable to administer the arbitration for any reason, you agree that we shall select an alternative arbitration forum, and that you will agree in writing to administration of the arbitration by the alternative arbitration forum selected by us.
(g) Arbitration Procedures. Because our relationship with you, or your use of the Products, concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, applicable federal or state law may also apply to the substance of any Disputes. You and we agree that California law will be the state law that applies to these Terms. The arbitration shall be conducted in the English language.
We agree to pay all filing, administration, and arbitrator fees, other than the initial filing fee to be paid by you, and if your Dispute is for less than $1,000, we will reimburse you for the filing fee upon written request for reimbursement with documentation of insufficient funds to pay the fee. In the event that you are able to demonstrate that the costs of arbitration would be prohibitive as compared to costs of litigation, we will pay as much of the filing fee in connection with the arbitration as the arbitrator deems necessary in order to prevent the arbitration from being cost-prohibitive as compared to the costs of litigation. In all other cases, we and you will bear the fees and expenses for each party’s own respective attorneys, experts, witnesses, and for preparation and presentation of evidence at the arbitration. The parties agree that the arbitrator shall award arbitrator compensation, administrative fees, and the prevailing party’s reasonable attorney’s fees to the prevailing party in any legal proceeding, regardless of venue, that resolves a Dispute. Any arbitration will be confidential, and you and we agree not to disclose the existence, content, documents, or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award.
(h) Arbitration Location. You or we shall initiate arbitration in Orange County, California. In the event any other legal proceeding takes place outside of arbitration, the parties agree to be subject to jurisdiction in and hereby choose Orange County, California as the parties’ exclusive venue.
(i) Arbitration Award. The arbitrator will have the power to grant declaratory or injunctive relief, whether interim or final, only in favor of you individually and only to the extent necessary to provide relief warranted by your individual claim without affecting other customers, and any provisional measures ordered by the arbitrator may be enforced by any court of competent jurisdiction. Nothing in this section will prevent you from seeking public injunctive relief separately from arbitration in court, and any such application will not be deemed incompatible with the agreement to arbitrate or as a waiver of the right to arbitrate your individual claims. You and we agree that any proceedings seeking a remedy of public injunctive relief will proceed after the arbitration of all arbitrable Disputes, and will be stayed pending the outcome of the arbitration (pursuant to section 3 of the FAA). The arbitrator’s award will be binding and final, except for any right of appeal provided by the FAA or these Terms, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.(j) Severability. If any clause within this arbitration agreement (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this section, and the remainder of this arbitration agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable in its entirety, this entire arbitration agreement will be unenforceable, and the Dispute will be decided by a court.
(k) Continuation. This section survives any termination of these Terms or the provision of our Products or services to you.