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Terms of use

1. Introduction and eligibility

Please read these Terms of Use (“Terms”) carefully before using the Service.

Binding agreement. These Terms constitute a binding agreement between you and Phonak, LLC and its affiliates and subsidiaries (“Phonak,” “we,” “us”) regarding your use of our website located at https://www.phonak.com and any related online services, mobile applications, or other software or services we provide for use with the foregoing (collectively the “Service”). PLEASE READ THE FOLLOWING TERMS CAREFULLY. BY CLICKING “I ACCEPT,” OR BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING OUR PRIVACY POLICY (TOGETHER, THE “TERMS”). If you are not eligible, or do not agree to the Terms, then you do not have our permission to use the Service. If you are under 18 years of age, you represent and warrant that you have obtained the consent of your parent or legal guardian to access and use the Service.

These Terms include Phonak’s Privacy Policy and HIPAA Authorization for Use/Disclosure of Health Information, which are incorporated by reference into these Terms. We have included several annotations in boxes to help explain or emphasize key sections. These annotations are for convenience only and have no legal or contractual effect.

These Terms provide that all disputes between you and us will be resolved by BINDING ARBITRATION. 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, and your claims cannot be brought as a class action.

Revisions to Terms. We may revise these Terms at any time by posting an updated version. You should visit this page periodically to review the most current Terms. Your continued use of the Service after a change to these Terms constitutes your binding acceptance of these Terms. The terms “post” and “posting” as used in these Terms shall mean the act of submitting, uploading, publishing, displaying, or similar action on the Service.

2. The Service

Intended purposes. You acknowledge that all of the information and content provided on or through the Service is provided “as is” and for informational purposes only. We do not offer or provide medical, legal, or psychological advice, diagnoses, or treatment, although we may facilitate your interactions with medical professionals who do provide such services. The Service may provide helpful content related to health, but it is not intended to substitute for professional advice, diagnoses, or treatment, or your or your physician’s judgment. You assume all risk and responsibility for your use of or reliance on information you obtain from or through the Service. You acknowledge and agree that our activities under these Terms are limited to providing access to our Service.

Product descriptions. We attempt to be as accurate as possible in describing the products and services we offer. However, we do not warrant that product descriptions or other content provided through the Service are accurate, complete, reliable, current, or error-free. The availability and pricing of products are subject to change at any time without notice.

No patient or client relationship with Phonak. Your use of the Service does not create a patient or client relationship with us. You should consult with qualified health professionals who are familiar with your individual medical needs concerning your specific medical issues. Never disregard professional advice or delay in seeking it because of information you read through the Service. If you think you may have a medical emergency, call your doctor or 911 immediately, or go to the nearest hospital emergency room.

Third parties. The Service may list third parties that can help you purchase and use our products and services, or facilitate interactions with healthcare providers who can help you optimize our products’ configuration for your use. We do not recommend or endorse any third parties listed on the Service. We may, but are not required to, screen and monitor such third parties to ensure they have any necessary licenses, certifications, credentials, or have met any other prerequisites we deem necessary to be listed on the Service. We are not responsible for the actions or conduct of any third party, and you are solely responsible for determining whether a third party is qualified and/or legally permitted to provide products or services to you. Any disputes you may have with third parties are solely between you and such third parties. Contact privacy@phonak.com to notify us of any inappropriate or illegal conduct or content you encounter on the Service.

HIPAA compliance. When we provide products and services to healthcare providers, we may act as a “business associate,” as defined under the provisions of the Health Insurance Portability and Accountability Act of 1996 and its privacy and security regulations (HIPAA). In such case, we will comply with the HIPAA Privacy Rule, Breach Notification Rule, and Security Rule, to the extent applicable to the protected health information we maintain as a business associate. We are not responsible or liable for any healthcare provider’s HIPAA violations when using Service or our other products or services.

3. Eligibility to use the Service

Generally. You must be at least 13 years of age to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 13 years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations.

Agent of a company, entity, or organization. If you are using the Service on behalf of a company, entity, or organization (collectively “Organization”), then you represent and warrant that you:
a) are an authorized representative of that Organization;
b) have the authority to bind that Organization to these Terms; and
c) agree to be bound by these Terms on behalf of that Organization.

Accounts and Registration. To access some features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your email address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at privacy@phonak.com.

4. Communications

Marketing. By agreeing to these Terms, including the HIPAA Authorization for Use/Disclosure of Health Information, you agree that we may use and disclose your information for marketing purposes. We may contact you by telephone, email, or other electronic means regarding, for example, hearing loss, setting up a hearing evaluation, and/or the possible sale of a hearing-related products and services. You may revoke this permission by contacting us at privacy@phonak.com.

Electronic notices. By using the Service or providing personal information to us, you agree that we may communicate with you electronically regarding security, privacy, and administrative issues relating to your use of the Service, as further described in our Privacy Policy. You agree to receive email and/or text messages from us at the email address and phone number you provided to us for customer service-related purposes. Email and text messages to you will not be encrypted. We cannot guarantee the security of messages sent over public networks to you. 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.

5. Phonak’s content ownership and use

Ownership. The contents of the Service include: designs, text, graphics, images, video, information, logos, button icons, software, audio files, computer code, and other Phonak content (collectively, “Phonak Content”). All Phonak Content and the compilation (meaning the collection, arrangement, and assembly) of all Phonak Content are the property of Phonak or its licensors and are protected under copyright, trademark, and other intellectual property laws. Except as expressly authorized by us, you may not make use of the Phonak Content. We reserve all rights to the Phonak Content not granted expressly in these Terms.

License to you. We authorize you, subject to these Terms, to access and use the Service and the Phonak Content, and download, install, and use any mobile applications we offer for use with the Service, solely for your own personal use, and not for the benefit of any third party. Any other use, modification, or distribution is expressly prohibited. This license is revocable at any time with or without cause. Unauthorized use of the Phonak Content may violate copyright, trademark, and other applicable laws and is strictly prohibited. You must preserve all copyright, trademark, service mark, and other proprietary notices contained in the original Phonak Content on any copy you make of the Phonak Content.

Phonak marks. “Phonak,” the Phonak logo, and other Phonak logos and product and service names are or may be trademarks of Phonak (the “Phonak Marks”). Without our prior written permission, you may not display or use the Phonak Marks in any manner.

6. Suggestions and submissions

We appreciate hearing from our users and welcome your comments regarding the Service. Please be advised, however, that if you send us creative ideas, suggestions, inventions, or materials (“Feedback”), we shall:
a) own, exclusively, all rights in and to the Feedback;
b) not be subject to any obligation of confidentiality with respect to the Feedback, and not be liable for any use or disclosure of any Feedback; and
c) be entitled to unrestricted use of the Feedback for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.

7. User content disclaimers, limitations, and prohibitions

User Content Generally. Certain features of the Service may permit users to upload content to the Service, including comments, messages, photos, video, images, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.

Limited License Grant to Us. By posting or publishing User Content, you grant us a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.

Limited License Grant to Other Users. By posting or sharing User Content with other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.

User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize us and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by us, 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 us to violate any law or regulation.

User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. We may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against us with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, we do not permit copyright-infringing activities on the Service.

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:
Phonak, LLC
ATTN: Legal Department (Copyright Notification)
4520 Weaver Parkway, 60555 Warrenville, United States
Email: copyright@phonak.com

Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must comply with the elements of notification as described in 17 U.S.C. §512.

Repeat Infringers. We will promptly terminate the accounts of users that are determined by us to be repeat infringers.

Prohibited Conduct. You agree to use the Service only for its intended purpose and in an authorized manner. You must use the Service in compliance with all privacy, data protection, intellectual property, and other applicable laws. The following uses of the Service are prohibited. You may not:
a) interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) collecting personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
b) interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) 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 notwithstanding this restriction;
c) frame or link to the Service without permission;
d) use data mining, robots, or other data gathering devices on or through the Service, unless specifically allowed by these Terms;
e) post false or misleading information to the Service, impersonate another person, or misrepresent your affiliation with a person or entity, or perform any other fraudulent activity;
f) harass, abuse, or disclose personal information about another person, or otherwise post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
g) sell, transfer, or assign any of your rights to use the Service to a third party without our express written consent;
h) post advertising or marketing links or content, except as specifically allowed by these Terms;
i) use the Service in an illegal way or to commit an illegal act in relation to the Service or that otherwise could result in fines, penalties, or other liability to us or third parties;
j) access the Service from a jurisdiction where such access is illegal or unauthorized; or
k) attempt to do any of the acts described above or assist or permit any person in engaging in any of the acts described above.

8. Consequences of violating these Terms

We reserve the right to suspend or terminate your account and prevent access to the Service for any reason, at our discretion. We reserve the right to refuse to provide the Service to you in the future. You are responsible for, and agree to indemnify and hold us harmless against, any claims, fees, fines, penalties, and other liability incurred by us or others caused by or arising out of your breach of these Terms and your use of the Service.

9. Phonak’s liability

Changes to the Service. We may change, suspend, or discontinue any aspect of the Service at any time, including hours of operation or availability of the Service or any feature, without notice or liability to you.

User disputes. We are not responsible for any disputes or disagreements between you and any third party you interact with on or off the Service. As between you and us, you assume all risk associated with dealing with third parties. You release Phonak from all claims, demands, and damages you may have with respect to disputes among yourself and other users of the Service. Use caution and common sense when using the Service.

Content accuracy. We make no representations about accuracy, reliability, completeness, or timeliness of any contents of the Service. Similarly, we make no representations about the accuracy, reliability, completeness, or timeliness of any data from a third-party service provider or the quality or nature of third-party products or services obtained through the Service.

Third-Party websites and applications. The Service may include links to third party websites and applications, including tools that enable you to export information, including User Content, to your physician, other healthcare providers, or other third party services. By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. You use of third-party content or functionality is subject to such third parties’ terms and conditions and privacy policies. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content. You are responsible for evaluating whether you want to access or use them. We are not responsible for and do not endorse any features, content, advertising, products, or other materials on other websites or applications. You assume all risk and we disclaim all warranties and liability arising from your use of them.

DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE SERVICE AND ANY PRODUCTS OR SERVICES MADE AVAILABLE ON OR THROUGH THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE AND ANY PRODUCTS OR SERVICES MADE AVAILABLE ON OR THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED BY THE RELEASED PARTIES OR OTHER PERSONS ON OR THROUGH THE SERVICE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) WE MAKE NO WARRANTY THAT: (i) THE SERVICE OR ANY PRODUCTS OR SERVICES MADE AVAILABLE ON OR THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (iv) ANY ERRORS IN THE SERVICE WILL BE CORRECTED; AND (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.

LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE ARE NOT AND WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE OR ANY PRODUCTS OR SERVICES MADE AVAILABLE ON OR THROUGH THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE SERVICE; (iii) UNAUTHORIZED ACCESS TO, CORRUPTION OF, INTERFERENCE WITH, OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON THE SERVICE; (v) YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US; OR (vi) ANY OTHER MATTER RELATING TO THE SERVICE OR THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OUR AGGREGATE MAXIMUM LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION WITH THE SERVICE, THIS AGREEMENT, OR YOUR USE OF PHONAK CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $100.
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 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.


Indemnification.
You are responsible for your use of the Service, and you will defend and indemnify us and our officers, directors, employees, consultants, affiliates, subsidiaries, licensors, partners, and agents (together, the “Phonak Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs (“Claims”) brought by a third party arising out of or connected with: (a) your 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.

10. General Terms

These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and us 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.

Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Phonak submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that materials included in the Service are appropriate or available for use in other locations.

Privacy Policy. Please read the Phonak Privacy Policy carefully for information relating to our collection, use, storage, disclosure of your personal information. The Phonak Privacy Policy is incorporated by this reference into, and made a part of, these Terms.

Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

Contact Information. The Service is offered by Phonak, LLC, located at 4520 Weaver Parkway, 60555 Warrenville, United States. You may contact us by sending correspondence to that address or by emailing us at support@phonak.com.

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.

11. Arbitration, class waiver, and waiver of jury trial

Generally. In the interest of resolving disputes between you and Phonak in the most expedient and cost effective manner, you and Phonak 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 PHONAK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

Exceptions. Despite the provisions of the foregoing subsection, 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; or (d) to file suit in a court of law to address an intellectual property infringement claim.

Arbitrator. Any arbitration between you and Phonak will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. 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 Phonak.

Notice; 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 such other party has not provided a current physical address, then by electronic mail (“Notice”).Phonak's address for Notice is: Phonak LLC, 4520 Weaver Parkway, 60555 Warrenville. The Notice 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 is received, you or Phonak may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Phonak must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Phonak will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Phonak in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.

Fees. If you commence arbitration in accordance with these Terms, Phonak 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 Santa Clara 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 Phonak 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.

No Class Actions. YOU AND PHONAK 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 Phonak 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.

Modifications to this Arbitration Provision. If Phonak makes any future change to this arbitration provision, other than a change to Phonak's address for Notice, you may reject the change by sending us written notice within 30 days of the change to Phonak's address for Notice, in which case your account with Phonak will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

Enforceability. If the class action waiver stated above is found to be unenforceable or if the entirety of this arbitration section is found to be unenforceable, then the entirety of this arbitration section will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in the General Terms section will govern any action arising out of or related to these Terms.