Terms of Service
These Terms of Service (these “Terms”) of Aura USA Inc. (“Aura,” “we,” or “us”) describe your rights and responsibilities when accessing and/or using our website, including www.aura.care and any successor URL(s), and any and all related software, documentation, and online, mobile-enabled, and/or digital services provided by Aura (collectively, the “Service”). Aura owns and operates the technology related to delivery of the Service, and provides administrative and technology support to certain affiliated entities, including by facilitating access to telehealth services. Aura provides these management and administrative services to the Aura affiliated medical practice (“Aura Medical”). Aura is not a healthcare provider and any healthcare services you may receive will be provided through Aura Medical.
By accessing or using the Service, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound by these Terms, the Patient Agreement, including the Consent to Treatment via Telehealth (the “Patient Agreement”), and Aura Medical’s Notice of HIPAA Privacy Practices (as it may be updated from time to time, our “NPP”), and you acknowledge that you have read and understood our Privacy Notice (as it may be updated from time to time, our “Privacy Notice”). Aura and Aura Medical reserve the right to modify these terms and will provide notice of material changes as described below. These Terms apply to all visitors, users, and others who access the Service (“Users”).
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION PROVISION IN SECTION 12.2 (THE “ARBITRATION AGREEMENT”) AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 12.3 (THE “CLASS ACTION/JURY TRIAL WAIVER”) THAT REQUIRE, UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN SECTION 12.2, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND US, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTION OR PROCEEDING.
1.Our Service
1.1 Not for Emergencies
IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD NOT USE THE SERVICE. PLEASE DIAL 911 OR GO TO A HOSPITAL.
The Service is not for medical emergencies or urgent situations. You should not disregard or delay to seek medical advice based on anything on the Service. If you believe you have an emergency, please call 911 or go to a hospital immediately.
1.2 No Medical or Professional Advice; No Doctor-Patient Relationship
Although the Service may enable you to communicate with and receive services from Aura Medical or other third-party health care providers (“Providers”), and may provide access to certain health-related information, Aura does not directly or indirectly offer medical advice or other professional advice, and your use of the Service does not create a doctor-patient, provider-patient or similar relationship between you and Aura. Any information on or which may be discovered through the Service is intended to be general information in regard to the subject matter covered, and any such information should not be considered complete, nor should it be relied on to suggest a basis for diagnosis or course of treatment. ANY SERVICES, ADVICE, OR INFORMATION RECEIVED FROM A PROVIDER COMES FROM THE PROVIDER ALONE, AND NOT FROM AURA. THE SERVICES, TREATMENT, AND CARE YOU RECEIVE MAY VARY DEPENDING ON THE PROVIDER YOU INTERACT WITH. PLEASE CONTACT YOUR PROVIDER DIRECTLY FOR ANY QUESTIONS REGARDING YOUR CARE OR MEDICAL TREATMENT.
Providers are not contracted or employed by Aura. Your interactions with Providers via the Service are not intended to take the place of your regular health care providers. Aura is not liable for any professional advice obtained from a Provider via the Service, nor any information obtained on the Service. Aura does not recommend or endorse any specific Providers. AURA DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE QUALIFICATIONS, TRAINING OR SKILL OF ANY PROVIDERS WHO PROVIDE SERVICES THROUGH THE SERVICE. YOU ARE RESPONSIBLE FOR CHOOSING YOUR PARTICULAR PROVIDER. YOU ACKNOWLEDGE THAT YOUR RELIANCE ON ANY PROVIDERS OR INFORMATION DELIVERED BY THE PROVIDERS IS AT YOUR OWN RISK, AND YOU ASSUME FULL RESPONSIBILITY FOR ALL RISKS ASSOCIATED HEREWITH. AURA DOES NOT PROVIDE ANY LEGAL ADVICE OR REPRESENTATIONS IN ANY WAY REGARDING ANY SERVICES OFFERED BY A PROVIDER THROUGH THE SERVICE.
1.3 Eligibility
This is a contract between you and Aura. You must read and agree to these Terms before using the Service. If you do not agree, you may not use the Service. You may use the Service only if you have a valid email address, are eighteen (18) years of age or older, and can form a binding contract with Aura, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations (“Applicable Law”). The Service is not available to any Users previously removed from the Service by Aura.
Without limiting the generality of the foregoing, any access to, or use of, the Service by non-U.S. residents is strictly prohibited and in violation of these Terms. Aura makes no representations that the Service is appropriate or available for use in other locations. By using the Service, you represent that you are a U.S. resident.
1.4 Limited License
Subject to the terms and conditions of these Terms, you are hereby granted a non-exclusive, limited, non-transferable, and freely revocable license to use the Service for your personal, non-commercial use only, strictly as permitted by the features of the Service. Aura may terminate this license at any time for any reason or no reason. Aura reserves all rights not expressly granted herein in the Service and the Aura Content (as defined in Section 3.1 below).
1.5 User Accounts; Consent to Electronic Communications
Your account on the Service (“User Account”) gives you access to certain services and functionalities that we may establish and maintain as part of the Service from time to time, in our sole discretion. We may maintain different types of User Accounts for different types of Users. If you open a User Account on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of that entity with the authority to bind that entity to these Terms, and that you agree to these Terms on the entity’s behalf. By connecting to the Service with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You may never use another User’s User Account without permission. When creating your User Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, and you must keep your User Account password secure. You must notify Aura immediately of any breach of security or unauthorized use of your User Account. Aura will not be liable for, and expressly disclaims any responsibility for, any losses caused by any unauthorized use of your User Account.
Unsecured email, mobile phone text messages, or other unsecure electronic methods of communication are not confidential means of communication and there is a possibility that a third party could intercept and see these messages. By providing Aura your email address or mobile phone number, you acknowledge these risks and consent to Aura using that email address or mobile phone number to send you Service-related notices, including any notices required by Applicable Law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as messages notifying you of changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out of receiving such email messages by clicking on the “unsubscribe” link in the email message received and/or change your preferences in your settings page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
By creating a User Account and providing Aura your mobile phone number, you consent to receive auto-dialed and/or pre-recorded calls and text messages from us at the mobile phone number provided by you to us. We may place such calls or texts to (a) help keep your User Account secure through the use of two-factor authentication; (b) help you access your User Account; and/or (c) as otherwise necessary to service your User Account and/or to enforce these Terms, our policies, Applicable Law, and/or any other agreement we may have with you.
1.6 Service Rules; Use Restrictions
You agree not to engage in any of the following prohibited activities: (a) providing any false or fraudulent information or documentation or providing information or documentation for any other improper purpose, whether for yourself, your business, or a third party; (b) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, or hiding or attempting to hide your identity; (c) copying, distributing, making available, providing access to, or disclosing any part of the Service in any medium, including, without limitation, by any automated or non-automated “scraping”; (d) using any automated system, including, without limitation, “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the servers running the Service than a human can reasonably produce in the same period of time by using a conventional online web browser (except that Aura grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Service for the sole purpose of, and solely to the extent necessary for, creating publicly available searchable indices of the materials, but not caches or archives of such materials); (e) copying, modifying, adapting, translating, preparing derivative works from, reverse engineering, disassembling, or decompiling the Service or otherwise attempting to discover any proprietary source code or trade secrets related to the Service; (f) using the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with Aura or the Service for any purpose without the express written consent of Aura; (g) transmitting spam, chain letters, or other unsolicited email; (h) attempting to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from the servers running the Service; (i) taking any action that imposes, or may impose (as determined by us, in our sole discretion), an unreasonable or disproportionately large load on our infrastructure; (j) uploading invalid data, viruses, worms, or other software agents through the Service; (k) collecting or harvesting any personal information from the Service; (l) interfering with the proper working of the Service; or (m) bypassing the measures we may use to prevent or restrict access to the Service, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on the use of the Service or the content therein.
1.7 Changes to the Service
We may, with or without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to your User Account and/or the Service with or without notice and without liability, for any reason, including if, in our sole determination, you violate any provision of these Terms, or for no reason. Upon their termination for any reason or no reason, you continue to be bound by these Terms.
1.8 Disputes with Other Users
You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Aura shall have no liability for your interactions with other Users, or for any User’s action or inaction.
2. User Content
The Service may allow you to submit, post, display, provide, or otherwise make available content such as images, comments, questions, and other content or information (“User Content”).
We claim no ownership rights over your User Content, and, as between you and us, it remains yours. Aura has the right (but not the obligation), in its sole discretion, to remove any User Content that is shared via the Service.
By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Service, you hereby expressly grant, and you represent and warrant that you have all rights necessary to grant, to Aura a royalty-free, transferable, perpetual, irrevocable, non-exclusive, and worldwide license, with the right to grant and authorize sublicenses, to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, for use in connection with the Service and Aura’s (and its successors’) business, including, without limitation, for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.
For the purposes of these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress, and service mark rights, goodwill, trade secret rights, and any and all other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals, and extensions thereof, under the laws of any state, country, territory, or other jurisdiction.
In connection with your User Content, you affirm, represent, and warrant the following:
· you have the written consent of each and every identifiable natural person referred to or mentioned in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Service and these Terms, and each such person has released you from any liability that may arise in relation to such use;
· you have obtained and are solely responsible for obtaining all consents as may be required by Applicable Law to post any User Content relating to third parties;
· your User Content and Aura’s use thereof as contemplated by these Terms and the Service will not violate any Applicable Law or infringe any rights of any third party, including, but not limited to, any Intellectual Property Rights and privacy rights;
· Aura may exercise the rights to your User Content granted under these Terms without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise;
· your User Content does not include sexually suggestive content; hate speech, threats, or direct attacks on an individual or group; abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable content; content that contains self-harm or excessive violence; illegal content or content in furtherance of harmful or illegal activities; malicious programs or code; any person’s personal information without such person’s consent; and/or spam, machine-generated content, or unsolicited messages; and
· to the best of your knowledge, all of your User Content and all other information that you provide to us is truthful and accurate.
Aura takes no responsibility and assumes no liability for any User Content that you or any other User or third party submits, posts, displays, provides, or otherwise makes available on or through the Service. You will be solely responsible for your User Content and the consequences of submitting it, posting it, displaying it, providing it, or otherwise making it available on or through the Service, and you agree that we are acting only as a passive conduit for your online distribution of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Aura will not be liable for any damages you allege to incur as a result of or relating to any User Content.
3. Our Proprietary Rights
3.1 Aura Content
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, any software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Aura Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Aura and its licensors, providers, distributors, and suppliers (collectively, “Suppliers”). Except as explicitly provided herein, nothing in these Terms will be deemed to create a license in or under any such Intellectual Property Rights, and you will not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works of any Aura Content. Use of the Aura Content for any purpose not expressly permitted by these Terms is strictly prohibited.
3.2 Usage Data
Aura may collect, maintain, process, and use, or you may provide to Aura, diagnostic, technical, usage, and related information, including information about your computers, mobile devices, systems, and software (collectively, “Usage Data”). You agree that all Usage Data is owned solely and exclusively by Aura, and, to the extent any ownership rights in or to the Usage Data vest in you, you hereby assign to Aura all rights, title, and interest in and to the same. Accordingly, Aura may use the Usage Data or any portion thereof for any lawful purpose, including, without limitation: (a) to provide and maintain the Service; (b) to develop and improve the Service; (c) to monitor your usage of the Service; (d) for research and analytics and for Aura’s other business purposes; and (e) to share analytics and other derived Usage Data with third parties, solely in deidentified or aggregated form. The Service may contain technological measures designed to prevent unauthorized or illegal use of the Service. You acknowledge and agree that Aura may use these and other lawful measures to verify your compliance with the terms of these Terms and to enforce Aura’s rights, including all Intellectual Property Rights, in and to the Service.
3.3 Feedback
To the extent you provide any suggestions, recommendations, or other feedback relating to the Service or any other Aura products or services, (collectively, “Feedback”), such Feedback is non-confidential, and you hereby grant, and you represent and warrant that you have all rights necessary to grant, to Aura a non-exclusive, perpetual, irrevocable, transferable, royalty-free, and worldwide license, with the right to grant and authorize sublicenses, to implement, use, modify, and otherwise exploit, in any way without restriction, the Feedback, without any fees, attribution, or other obligations to you or any third party.
4. Paid Products and Services
Certain aspects of the Service may be provided for a fee or other charge. If you elect to use paid aspects of the Service, you agree to the pricing and payment terms applicable to you (as we may update them from time to time, the “Pricing and Payment Terms”). The Pricing and Payment Terms are hereby incorporated by this reference herein. You acknowledge and agree that any offers made available through the Service are subject to change at any time and from time to time. Without limiting the generality of the foregoing, Aura may add new services for additional fees and charges, and may add or amend fees and charges for existing services, at any time, in its sole discretion. Any change to the Pricing and Payment Terms will become effective in the billing cycle following notice of such change to you as provided in these Terms.
Taxes. In connection with payments of any fees and/or any other monetary transaction interaction with the Service, you may be asked to provide customary billing information such as name, billing address, and credit card information to us or to the applicable third-party payment processor. All information that you provide in connection with a monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your payment method used in connection with a monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You hereby authorize the collection of such amounts by charging your designated payment method or credit or debit card, either directly by us, or indirectly via a third-party payment processor. We cannot control any fees that may be charged to you by your bank in connection with the collection of fees, and we disclaim any and all liability in this regard. If you are directed to a third-party payment processor, you will be subject to terms and conditions governing the use of that third party’s service and to that third party’s personal information collection practices. Please review such terms and conditions and privacy notice before using such third party’s services. Without limiting the generality of the foregoing, you acknowledge and understand that, by using the Service, you agree to be bound by Stripe, Inc.’s Services Agreement, and by the terms of service of any other third-party payment processor(s) that we may engage from time to time in our sole discretion. You acknowledge and understand that third-party payment processors may collect and retain Third-Party Fees whenever you pay fees. Except as otherwise provided herein, fees are non-refundable. If you believe you have been improperly charged and would like to request a refund, please contact us at legal-us@aura.care. You will pay, and indemnify Aura for, all applicable taxes, if any, relating to any monetary transaction interaction with the Service. As used herein, “Third-Party Fees” means the portion of the fee(s) retained by third parties such as Stripe, Inc. and other third-party payment processors that we may engage from time to time, in our sole discretion.
5. Privacy
We care about the privacy of our Users. By using the Service, you understand and acknowledge that your personal information will be collected, used, and disclosed as set forth in our Privacy Notice.
6. Security
We care about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
7. Third-Party Links, Information, and Services
The Service may contain links to third-party materials and services that are not owned or controlled by Aura. Further, to use the Service, you may be required to register for third-party services and/or to otherwise enable various third-party services that may directly integrate with the Service (collectively, “Third-Party Services”). By enabling a Third-Party Service within the Service, you allow Aura to pass your log-in credentials and/or other information (e.g., tokenized authentication information) to such Third-Party Service. Aura does not endorse or assume any responsibility for any third-party sites, nor for any information, materials, products, or services (including, without limitation, Third-Party Services) available on or through third-party sites. If you access a third-party website or service (including, without limitation, a Third-Party Service) from the Service or share your User Content on or through any third-party website or service (including, without limitation, a Third-Party Service), you do so at your own risk, and you understand that these Terms and our Privacy Notice do not apply to your access to or use of such sites or services. You acknowledge that a Third-Party Service may revoke your right to access and/or authenticate to such Third-Party Service at any time. As such, Aura is not liable for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any Third-Party Service. Aura may enable Third-Party Services merely as a convenience to Users, and the inclusion of Third-Party Services does not imply an endorsement or recommendation of them. You expressly relieve Aura from any and all liability arising from your access to and/or use of any third-party website, service, or content, including, without limitation, User Content that may be submitted by other Users.
Additionally, your dealings with or participation in promotions of advertisers that may be found on the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and any such advertisers or similar parties. You agree that Aura will not be responsible for any loss or damage of any sort relating to your dealings with any such advertisers or similar parties.
8. Cooperation
If requested, you agree to diligently assist Aura in responding to requests and inquiries with respect to your User Account, User Content, and/or material or transactions associated with you or your User Account, including, without limitation, by providing us with all information and assistance we may reasonably require, and/or responding promptly and accurately to any such requests and inquiries, should we connect between you and the inquirer.
9. Release and Indemnity
You hereby release Aura from all damages (whether direct, indirect, incidental, consequential, or otherwise), losses, liabilities, costs, and expenses of every kind and nature, known and unknown, arising out of a dispute between you and a third-party (including any other User) in connection with the Service. In addition, you waive any applicable law or statute, which says, in substance: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE RELEASED PARTY.”
You agree to defend, indemnify, and hold harmless Aura and its Suppliers, employees, contractors, agents, attorneys, accountants, officers, and directors from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including, but not limited to, attorneys’ fees) arising from: (a) your access to and use of the Service, including any data or content transmitted or received by you; (b) your violation of any term of these Terms, including, without limitation, your breach of any of the representations and warranties herein contained; (c) your violation of any third-party right, including, without limitation, any right of privacy or Intellectual Property Right; (d) your violation of any Applicable Law; (e) User Content or any content that is submitted via your User Account, including, without limitation, misleading, false, or inaccurate information; (f) your willful misconduct; or (g) any other party’s access to and/or use of the Service with your credentials. Aura reserves the right, in its sole discretion and at its expense, to assume the exclusive defense and control of any such claims, in which case, you agree to cooperate as reasonably requested by Aura in the defense of such claims.
10. No Warranty
The Service is provided on an “as is” and “as available” basis. Use of the Service is at your own risk. To the maximum extent permitted by Applicable Law, the Service, the Aura Content, and any other information available on or through the Service are provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from Aura or through the Service will create any warranty not expressly stated herein. Without limiting the generality of the foregoing, Aura and its Suppliers do not warrant that the Aura Content or any other information contained in the Service are accurate, comprehensive, reliable, useful, or correct; that the Service will meet your requirements or satisfy or ensure compliance with any legal obligations or Applicable Law; that the Service will be available at any particular time or location, uninterrupted, or secure; that any defects or errors in the Service will be corrected; or that the Service is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Service is downloaded at your own risk, and you will be solely responsible for any damage to your computer system(s) or mobile device(s) or for loss of data that results from such download or from your use of the Service.
Aura is not responsible for any decisions, nor for any damages or other losses resulting from the reliance on or use of information provided by Aura and/or through the Service. Further, Aura does not warrant, endorse, guarantee, recommend, or assume responsibility for any product or service advertised or offered by any third party through the Service or any hyperlinked website or service, and Aura will not be a party to, or in any way monitor, any transaction between you and third-party providers of products and services.
Federal law and some states, provinces, and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. These Terms give you specific legal rights, and you may also have other rights, which vary from jurisdiction to jurisdiction. The disclaimers and exclusions under these Terms will not apply to the extent prohibited by Applicable Law.
11. Limitation of Liability
To the maximum extent permitted by Applicable Law, in no event will Aura or its Suppliers, employees, contractors, agents, attorneys, accountants, officers, or directors be liable for any indirect, punitive, incidental, special, consequential, or exemplary damages, including, without limitation, damages for loss of profits, goodwill, use, or data, or other intangible losses, arising out of or relating to the use of, or inability to use, the Service, and/or to the Aura Content or any other information contained in the Service. Under no circumstances will Aura be responsible for any damage, loss, or injury resulting from hacking, tampering, or other unauthorized access to or use of the Service or your User Account or the information contained therein.
To the maximum extent permitted by Applicable Law, Aura assumes no liability or responsibility for any (a) errors, mistakes, or inaccuracies of content; (b) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of the Service; (c) any unauthorized access to or use of the servers running the Service and/or any and all personal information stored therein; (d) any interruption or cessation of transmission to or from the Service; (e) any bugs, viruses, trojan horses, or the like that may be transmitted to or through the Service by any third party; (f) any errors or omissions in any Aura Content, or any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Service; and/or (g) User Content or the defamatory, offensive, or illegal conduct of any third party. In no event will Aura or its Suppliers, employees, contractors, attorneys, accountants, agents, officers, or directors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses, or costs in an amount exceeding the amount you paid to Aura hereunder during the twelve (12) months preceding the date on which the liability arose or $50.00, whichever is greater.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Aura has been advised of the possibility of such damage.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. These Terms give you specific legal rights, and you may also have other rights, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under these Terms will not apply to the extent prohibited by Applicable Law.
12. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
12.1 Governing Law
These Terms will be governed by the internal substantive laws of the State of Delaware, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law governing these Terms, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) governs the interpretation and enforcement of the Arbitration Agreement below and preempts all state laws (and laws of other jurisdictions) to the fullest extent permitted by Applicable Law. If the FAA is found to not apply to any issue that arises from or relates to the Arbitration Agreement, then that issue will be resolved under and governed by the law of the U.S. state where you reside or the jurisdiction mutually agreed upon in writing by you and us. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in Delaware for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of our Intellectual Property Rights or other proprietary rights, as set forth in the Arbitration Agreement below, including any provisional relief required to prevent irreparable harm. You agree that Delaware is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the Arbitration Agreement below is found to be unenforceable.
12.2 Arbitration
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM AURA. This Arbitration Agreement applies to and governs any dispute, controversy, or claim between you and Aura that arises out of or relates to, directly or indirectly: (a) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (b) access to or use of the Service, including receipt of any advertising or marketing communications; (c) any transactions through, by, or using the Service; or (d) any other aspect of your relationship or transactions with Aura, directly or indirectly, as a consumer (each, a “Claim,” and, collectively, “Claims”). This Arbitration Agreement will apply, without limitation, to all Claims that arose or were asserted before or after your agreement to these Terms.
If you are a new User, you can reject and opt-out of this Arbitration Agreement within thirty (30) days of accepting these Terms by emailing Aura at legal-us@aura.care with your full legal name and stating your intent to opt-out of this Arbitration Agreement. Note that opting out of this Arbitration Agreement does not affect any other part of these Terms, including the provisions regarding controlling law or the courts in which any disputes must be brought.
For any Claim, you agree to first contact us at legal-us@aura.care and to attempt to resolve the Claim with us informally. In the unlikely event that we have not been able to resolve a Claim after sixty (60) days, we each agree to resolve such Claim exclusively through binding arbitration by the American Arbitration Association (“AAA”) before a single arbitrator (the “Arbitrator”), under the Expedited Procedures then in effect for AAA (the “Rules”), except as provided herein. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement will control. AAA may be contacted at www.adr.org, where the Rules are also available. The arbitration will be conducted in the U.S. county where you reside or Sussex County, Delaware, unless you and Aura agree otherwise. You acknowledge and understand that, depending on the kind of User you are, either (i) each of you and us will be responsible for paying any AAA filing and administrative and Arbitrator fees in accordance with the Rules, and the award rendered by the Arbitrator will include costs of arbitration, reasonable attorneys’ fees, and reasonable costs for expert and other witnesses, or (ii) AAA may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from AAA; the award rendered by the Arbitrator may include your costs of arbitration, your reasonable attorneys’ fees, and your reasonable costs for expert and other witnesses; and you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this would not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the Arbitrator may be entered in any court of competent jurisdiction. You and Aura agree that the Arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any disputes relating to the scope, interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator will also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms are, or any provision of these Terms is, unconscionable or illusory, and any defense to arbitration, including waiver, delay, laches, unconscionability, and/or estoppel.
Nothing in this Arbitration Agreement will be deemed as: preventing Aura from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, Intellectual Property Rights, or other proprietary rights; or preventing you from asserting claims in small claims court, provided that your claims qualify, and so long as the matter remains in such court and advances on only an individual (non-class, non-representative) basis.
If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, will be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, will have no impact on the remaining provisions of this Arbitration Agreement, which will remain in force, or on the parties’ ability to compel arbitration of any remaining Claims on an individual basis pursuant to this Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver below is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement will be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief will be stayed pending the outcome of any individual claims in arbitration.
12.3 Class Action/Jury Trial Waiver.
To the extent you provide any suggestions, recommendations, or other feedback relating to the Service or any other Aura products or services, (collectively, “Feedback”), such Feedback is non-confidential, and you hereby grant, and you represent and warrant that you have all rights necessary to grant, to Aura a non-exclusive, perpetual, irrevocable, transferable, royalty-free, and worldwide license, with the right to grant and authorize sublicenses, to implement, use, modify, and otherwise exploit, in any way without restriction, the Feedback, without any fees, attribution, or other obligations to you or any third party.
13. Additional Terms for Mobile Applications
13.1 Mobile Applications
We may make available software to access the Service via a mobile device (“Mobile Applications”). To use any Mobile Applications you must have a mobile device that is compatible with the Mobile Applications. Aura does not warrant that the Mobile Applications will be compatible with your mobile device. You may use mobile data in connection with the Mobile Applications and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Aura hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for one Aura User Account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Applications, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Applications to any third party or use the Mobile Applications to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Applications; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Applications, features that prevent or restrict use or copying of any content accessible through the Mobile Applications, or features that enforce limitations on use of the Mobile Applications; or (v) delete the copyright and other proprietary rights notices on the Mobile Applications. You acknowledge that Aura may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of the Mobile Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof, and Aura or its third-party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Aura reserves all rights not expressly granted under this Agreement. If the Mobile Applications are being acquired on behalf of the United States Government, then the following provision applies. The Mobile Applications will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms of Service and is prohibited except to the extent expressly permitted by these Terms of Service. The Mobile Applications originate in the United States, and are subject to United States export laws and regulations. The Mobile Applications may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Applications may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Applications and the Service.
13.2 Mobile Applications from Apple App Store.
The following applies to any Mobile Applications you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and Aura, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Aura as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Aura as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, Aura, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Aura acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
13.3 Mobile Applications from Google Play Store
The following applies to any Mobile Applications you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that the Agreement is between you and Aura only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) Aura, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to Aura’s Google-Sourced Software.
13.4 California Residents
The provider of services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting it in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
14. General
14.1 Assignment
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Aura without restriction. Any attempted transfer or assignment in violation hereof will be null and void.
14.2 Notification Procedures and Changes to these Terms
Aura may provide notifications, whether such notifications are required by Applicable Law or are for marketing or other business-related purposes, to you via email notice, or written or hard copy notice, or through posting of such notice on the Aura website, as determined by Aura, in its sole discretion. Aura reserves the right to determine the form and means of providing notifications to Users, provided that you may opt out of certain means of notification as described in these Terms. Aura is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Aura may, in its sole discretion, modify or update these Terms from time to time, and so you should review this page periodically. When we change these Terms in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to these Terms. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of the terms of these Terms or to any future Terms of Service, do not access or use (or continue to access or use) the Service.
14.3 Entire Agreement/Severability
These Terms, together with any amendments and any additional agreements you may enter into with Aura in connection with the Service, will constitute the entire agreement between you and Aura concerning the Service. Except as otherwise stated in the Arbitration Agreement, if any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms, which will remain in full force and effect.
14.4 No Waiver
No waiver of any term of these Terms will be deemed a further or continuing waiver of such term or of any other term, and Aura’s failure to assert any right or provision under these Terms will not constitute a waiver of such right or provision.
14.5 Contact
Please contact us at legal-us@aura.care with any questions regarding these Terms.
