General Terms and Conditions of Online Sales to Consumers
Last updated: October 2024
Sonova Consumer Hearing USA LLC Version: 3
These General Terms and Conditions of online sales to consumers (the “Terms”) are entered into between you and Sonova Consumer Hearing USA LLC (together with its affiliates, licensors, subsidiaries, and/or related companies, “Sonova,” “us,” “our” or “we”). Sonova’s registered office is 750 North Commons Drive, Suite 200, Aurora, Illinois 60504. The following terms and conditions, together with any guidelines, policies, rules, notices or other ancillary agreements, which are expressly incorporated by reference, including, without limitation, the Privacy Policy (the “Privacy Policy”) and our Sonova Consumer Webstore Returns Policy , (the "Returns Policy"), Sonova Consumer Policy Against Return Fraud (the "Policy Against Return Fraud") Sonova Policy for Lost, Damaged or Stolen Shipments (the "Lost, Damaged or Stolen Shipments Policy") and Warranty Conditions ("Warranty Conditions") govern the terms of sale of each Product (as defined below), along with any applications, services, content or interface provided by us (individually, an "Audio Device Service," and collectively, the "Audio Device Services").
Sonova sells certain hearing aids products and consumer audio products under the Sennheiser brand, which is used under license from Sennheiser Electronic GmbH & CO. KG
PLEASE READ: THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 11). PLEASE READ THIS CAREFULLY. EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 11 BELOW, OR WHERE PROHIBITED BY LAW. BY PURCHASING A PRODUCT OR USING THE AUDIO DEVICE SERVICES YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND SONOVA RELATING TO ANY PRODUCTS OR AUDIO DEVICE SERVICES WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
BY PURCHASING ONE OR MORE PRODUCTS ON THIS CONSUMER PRODUCTS WEBSITE OR USING THE AUDIO DEVICE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS, THE PRIVACY POLICY, THE RETURN POLICY, THE POLICY AGAINST RETURN FRAUD, THE LOST, DAMAAGED OR STOLEN SHIPMENTS POLICY, WARRANTY CONDITIONS, AND ANY OTHER POLICY REFERENCED IN THESE TERMS. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS, YOU MUST NOT PURCHASE ANY PRODUCT(S) PURSUANT TO THIS WEBSITE, STOP USING THIS WEBSITE AND DISCONTINUE YOUR USE OF THE PRODUCT(S) AND THE AUDIO DEVICE SERVICES. THESE TERMS BECOME EFFECTIVE IMMEDIATELY UPON COMMENCEMENT OF YOUR USE OF THIS WEBSITE AND PURCHASE OF SONOVA PRODUCTS. CERTAIN OF THE PRODUCTS MAY BE SUBJECT TO ADDITIONAL TERMS AND CONDITIONS SPECIFIED FROM TIME TO TIME. YOUR USE OF THOSE ELEMENTS OF THE PRODUCT IS SUBJECT TO THOSE ADDITIONAL TERMS AND CONDITIONS, WHICH ARE INCORPORATED INTO THESE TERMS BY THIS REFERENCE.
All terms and conditions contained in any prior oral or written communication that are different from or in addition to the terms and conditions contained herein are hereby superseded by these Terms.
We reserve the right to update or modify these Terms at any time. Changes will be effective immediately upon posting on our Website.
Please print or save these Terms for future use as there is no assurance that they will remain accessible in future. You are entering into the Terms in the English language, if a non-English language version of these Terms was posted or provided, you agree that the translation is provided for convenience only and that the English language version will govern.
1. Products, Pricing and Availability
Products
Sonova offers the products listed on this Website (individually, the “Product” and collectively the “Products”), subject to availability at the time of request.
Sonova accepts orders for the Products that it may offer through this Website. Unfortunately, Sonova cannot and does not guarantee the availability of the Products at all times.
The Products fall into two categories: (1) Over-the-Counter Hearing Aids (hereinafter referred to as “OTC Hearing Aids”) and (2) Consumer Audio Products (“hereinafter referred to as “Consumer Audio Products”). Please be aware that certain terms and conditions of sale vary depending on the type of Product purchased, as described in these Terms. The term “Product” or “Products” refers to the OTC Hearing Aids and Consumer Audio Products collectively.
The information provided on this Website is subject to corrections and changes without notice. Advertising depictions, graphics and diagrams are for illustrative purposes only and may not accurately reflect actual product or component availability. Colors, styles and other variants depicted are for illustration only and are subject to change. Errors will be corrected where discovered, and we reserve the right to revoke any stated offer and to correct any errors, inaccuracies or omissions.
Pre-Orders/Pre-Sale Items
Products listed or advertised on this Website or otherwise as” Pre Order” products will be shipped to the “ship to” address that you specify with your order on or after the date of availability. Your chosen method of payment will be charged at the time of shipment, and you reserve the right to cancel the pre-order for a full refund up to one (1) business day prior to “release” date as stated on the Website or such other written document issued by Sonova (such as an order confirmation).
Quantity Limits
We reserve the right to impose purchase quantity limits on the purchase of any Product listed on the Website, at any time and for any reason.
Most sale, promotional or otherwise “marked down” items have a purchase quantity limit of one item per customer. We reserve the right to enforce this quantity limitation across multiple customer accounts or multiple orders.
Bulk Orders
A bulk order, as defined by us, is any order containing two (2) or more of the same Product (SKU or variant SKU) or three (3) or more Products in total line-item quantity. Bulk orders are subject to additional restrictions including, but not limited to: Additional review prior to shipment (which may occasionally result in outbound shipment delays), secondary confirmation requirements from the purchasing party, and specific return process requirements. A bulk order, as defined by us, is any order containing two (2) or more of the same Product (SKU or variant SKU) or three (3) or more Products in total line-item quantity. Bulk orders are subject to additional restrictions including, but not limited to: Additional review prior to shipment (which may occasionally result in outbound shipment delays), secondary confirmation requirements from the purchasing party, and specific return process requirements, which can be referenced in our “Returns Policy” terms and conditions.
Any Product defined by Sonova as a “spare part” or “accessory” is excluded from general bulk order provisions unless the website specifically states otherwise on the relevant Product page.
2. Pricing, Promotions and Transactions
Pricing
Prices displayed on the Product pages typically do not include applicable local/state taxes, optional express shipping service charges, or other applicable fees. Your total cost including local/state taxes and optional shipping service charges (together with any other applicable fees and expenses) will be calculated on the checkout pages where you will be asked to confirm the purchase.
We will make all reasonable efforts to provide accuracy and up to date pricing and other information. Please note that information provided on this Website is subject to corrections and changes without notice. Advertising depictions, graphics and diagrams are for illustrative purposes only and may not accurately reflect actual product or component availability. Colors, styles and other variants depicted are for illustration only and are subject to change. Errors will be corrected where discovered, and we reserve the right to revoke any stated offer and to correct any errors, inaccuracies or omissions.
In the event of an error related to the pricing of a Product or Audio Device Service, we reserve the right to – with your written consent – revise your order with the correct pricing. If we do not obtain your consent, we will cancel the order and provide you with a refund for the price paid and any unused express shipping charges.
The transactable purchase price of any Product offered to you on this Website shall be the price displayed on the “Checkout” page, the final step before a transaction is submitted. The pricing displayed at checkout, including all applicable taxes, fees and any shipping charges, will constitute the ”total” transaction price you will pay for a given transaction.
Certain installment payment plans may be offered on the Website, and such installment plans will have their own terms and conditions applicable to such repayment plans. These other terms and conditions are agreed upon by you when the order is placed.
All payments must be made in the currency specified on this website, and any refunds will be provided in that same currency.
Taxes
For purchases where sales or transaction tax is applicable, you will see the tax calculated on the checkout page before you are asked to confirm your purchase. Tax shown at checkout is an estimate and the actual tax collected may differ once we process the order. We use commercially reasonable efforts to calculate and remit the correct amount of tax required on each taxable purchase, but we do not guarantee the accuracy of the amount of the tax represented as owed. Minor errors may occur owing to the inability to accurately track multiple taxing districts, state and local “tax holidays” and timing of rate changes or the application of certain taxes to categories of items we sell. As a result of any error, we may overcollect or undercollect your tax. In consideration of collecting and remitting taxes required on your purchases, you hereby waive your right to claim that the tax collected on any purchase is incorrect in any respect, and you agree to hold us, our officers, directors, employees, agents and representatives harmless from and against any claim, action, demand, loss, suit or damages (including attorneys' fees) made or incurred as a result of our error in calculating the taxes you owe for your purchases.
Promotions, Voucher/Coupon/Promotional Codes or Limited Offers
A promotion (“promotion,” “sale,” “offer”) may be offered on specific items during specified time periods as defined by Sonova.
We want you to feel satisfied with your purchase and the value of your Sennheiser product. For this reason, and at our discretion, if the SKU of the Product you purchase is subject to a reduction in the advertised price on this Website within 24 hours after the order is placed, you may contact us with a request to adjust the purchase price via partial refund. We will not adjust or refund applicable shipping charges after an order has shipped, and we will adjust taxes as required by state and local jurisdictions.
The use of promotional codes (“discount code,” “coupon code,” “voucher code,” “code”) as a means of reducing a purchase price is subject to all pricing terms and conditions as written.
Such codes must be redeemed online during the checkout process and cannot be redeemed after a purchase is made. We cannot and will not accept or apply promotional codes to a purchase via phone, chat, or email.
Redemption of a promotional code as described above is limited to one per order and unless otherwise specified, cannot be combined with or “stacked” with other promotional/reduced pricing or other promotional codes.
Certain Products or groups of Products may be excluded from promotional code redemption as defined by Sonova. We reserve the right to include or exclude any Product or Product category from promotional offers or code redemption at any time.
Payment Terms
Sonova accepts a wide variety of payment methods for you to use as forms of payment in our checkout process. These are indicated on the Website at the point of purchase. We reserve the right to add, modify, suspend, or eliminate accepted payment methods at any time and without prior notice.
Payment Authorization
By placing an order on this Website, you authorize us to charge your selected payment method for the total order amount, including Product price, Taxes, any selected additional services tendered by third-party partners, and any additional shipping fees.
When you provide any payment-related or other information to us for any reason, you agree to only provide true, accurate, current and complete information. By providing any credit card or other payment card information, you represent that (a) such payment information is true, correct and complete, (b) you are duly authorized to use such credit card for the purchase, (c) charges incurred by you will be honored by your credit card company and (d) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Website at the time of your order. In the case of e-mail, you must provide an accurate e-mail address that is uniquely registered to you. You are responsible for promptly updating your information with any changes, especially to keep your billing information current. You agree that your placement of an electronic order on the Website (and any other Sonova website) is sufficient to satisfy any applicable Statute of Frauds, and no further writing is required.
Secure Transactions
We use secure and encrypted payment processing systems to protect your financial information. Sonova does not store or share your payment information with third parties, except as required for processing your order.
If a payment is declined by our processor(s), for your security, our Customer Support Team is not permitted to discuss any payment-related terms or disclose payment method information to you via phone, chat, email, or SMS.
Declined or failed transactions resubmitted with the same or similar information may result in temporary suspension of your customer account or IP address.
Order Confirmation
Upon successful payment processing, you will receive an email confirmation with details of your order. Please review your order confirmation and contact our customer support team immediately if you identify any discrepancies; Sonova is not liable for errors or misinformation related to billing or shipment details entered at checkout.
Declined or Failed Transactions
In the event of a payment failure, we will make reasonable attempts to notify you. Orders with unresolved payment issues may be canceled or delayed until necessary information is received to securely process your order.
Cancellation
We reserve the right to cancel an order placed by you at any time and for any lawful reason prior to our delivery of the Products and receipt of payment in full from you; provided, however, that we will refund your original purchase price for the Product(s) and any associated Taxes if we cancel as described in this paragraph.
Because we transmit order data to our warehouse quickly for fulfillment and shipping, we may not be able to cancel orders placed by you and accepted by Sonova.
Disputes and Chargebacks
If you have a dispute regarding a payment, please contact our customer support team promptly to resolve the issue.
‘Chargebacks’ and payment disputes initiated by you without prior communication to us may result in the suspension of your account; if you claim a chargeback or open a payment dispute prior to a refund or return request, the refund cannot be provided until the chargeback investigation is completed or the payment processor closes the dispute in favor of either party.
Payment Security
Protect your payment information by ensuring the security of your account login credentials. Sonova is not responsible for unauthorized use of your payment method due to account compromise.
Order Limitations
We do not accept orders through this Website which are to be shipped to or otherwise billed to entities outside of the United States of America. We are unable to accept orders for shipment to Puerto Rico, US Protectorates, or APO/FPO addresses.
3. Return, Refund and Credit Policy
Policy Terms
We have created a return policy that offers you options and flexibility.
If you are not familiar with our Returns Policy, please review the applicable terms and conditions located here.
Fraud Prevention
Sonova has adopted and follows a zero-tolerance policy for fraudulent payment or order attempts. We reserve the right – in cooperation with our third-party payment providers or partners – to hold and investigate any order we deem suspicious. If evidence of fraud is substantiated, all evidence will be submitted to the payment processor, other third parties as necessary, and the appropriate law enforcement authorities.
Please see Policy Against Return Fraud for more information.
4. Resale, Remarketing, Redistribution, Lease, or Transfer of Ownership
Products purchased via this Website are intended for consumer end users only, and are not eligible nor authorized for resale, remarketing, leasing, or redistribution.
By placing an order through this Website, you agree that you do not intend to resell, remarket, lease, or otherwise redistribute the Products through any medium. Doing so will be considered a material breach of these Terms and an infringement of the rights of Sonova and, to the degree that any digital assets furnished by Sonova are reused to resell or remarket the goods or otherwise, unauthorized use of our intellectual property.
If Sonova suspects that you are engaging in the resale, remarketing, leasing or redistribution of our Products without appropriate and binding written authorization to do so (such as in the form of an Authorized Dealer Agreement with Sonova), we reserve the right to cancel any past, current or future orders without warning or prior notice. If an order subject to this suspicion has shipped, we reserve the right to request a return to sender by the courier and provide you a refund of the purchase amount and Taxes, less any additional shipping charges.
We reserve the right to pursue legal action against you and/or any business involved in unauthorized resale, remarketing or distribution activity.
Transfer of Ownership
You may transfer ownership of Products purchased by you through this Website. However, all warranties and associated purchase protections or paid benefits are non-transferrable and are exclusively for the benefit of the initial end user.
5. Shipping and Handling
Orders are fulfilled promptly given current stock availability. Delivery dates cannot be guaranteed, and Sonova will not be responsible for any delays in shipping or delivery. If an item is out of stock, you will be promptly informed and can choose to wait until the item is back in stock or receive a refund of your purchase price to the extent that it has already been paid.
Sonova will choose the common carrier for shipment to you. All costs for shipment are reflected in your price at checkout on the Website. All risk of loss for the safe and timely delivery of the Products is transferred to the common carrier once in its possession. All Products ordered will be delivered to the shipping address you provide. Risk of loss is transferred to you immediately upon delivery.
Transit times displayed at checkout are estimates only and are subject to the carrier’s operations. Sonova makes reasonable efforts to provide reasonable and up-to-date transit time estimates, however, we are not responsible and are not liable for delays due to factors outside of our control such as elevated demand during peak online shopping periods, extreme weather phenomena, natural disasters labor related issues or public unrest.
If you must receive your order by a defined date, it is your responsibility to choose a courier service level which most closely aligns with your needs.
Ensuring Secure Packaging and Carrier Handover
For your security and the integrity of your order, our Products undergo serial number recording and product weight verifications before being carefully packaged under surveillance. Packaged orders are weighed in a secondary process prior to carrier handover.
Cancelling an Order
Because we intend to serve our customers expediently and deliver within our transit time estimates, accepted order data is quickly transmitted to our warehouse for fulfillment and shipping. As a result, we may not be able to cancel your order prior to shipment but will make every reasonable effort to complete your request.
If we are unable to cancel your order, you may refuse delivery or instruct the courier to return the package to us (‘return to sender’). Refused items are subject to inspection prior to release of refund to the original payment method.
Handling Time
Most authorized orders are packed and shipped by us for delivery to the carrier within 1 to 2 business days of receipt in our system. If there is a significant change to this handling period estimate, we will provide at least 24 hours of notice via our website, email, or other reasonably visible mediums.
Signature Requirements
Certain Product deliveries will require that you (or an individual authorized by you) sign an acknowledgement of receipt. The courier will notify you of this requirement on the courier’s tracking page prior to the package’s scheduled arrival. It is your responsibility to make alternative arrangements with the courier if your delivery is scheduled for a time which you are unavailable to inspect, sign for and accept your Product delivery.
Sonova is not responsible for signatures provided by unauthorized recipients.
In the rare case that your items are damaged or in an otherwise unacceptable condition upon delivery, Sonova recommends refusing the delivery. It is your responsibility to inspect your order prior to acceptance/signature provision for signs of damage or tampering.
Any signature provided to the courier will be considered your acknowledgement that you have received the Product(s) within the order and will end your right to pursue a claim of liability against the carrier and Sonova for a failure to deliver the Product(s). Once you acknowledge receipt of the Product(s), any damaged or defective items accepted on your behalf will be subject to our standard return policy.
Claims of Damage or Loss During Shipment
While rare, we will investigate and work with our carrier(s) to address damaged or lost items pursuant to a valid claim made by you. Learn more about our policies and how to initiate a claim by navigating here.
6. Third Party Websites
Sonova may include links to third party websites or third-party services within our website content. Sonova does not make any representation nor guarantee as to the quality, accuracy, accuracy or timeliness of information about any third-party website or its content and products.
7. Limited Warranty
Sonova provides a limited manufacturers' warranty to purchaser of OTC Hearing Aids and Consumer Audio Products, the terms and conditions of which can be found here.
Safety Warnings
You should carefully read all instructions for use and safety warnings to ensure you understand how to safely use the Products.
8. Indemnification
You agree to indemnify, defend and hold harmless Sonova and its directors, officers, employees, agents, licensors, suppliers and any third party information providers, from and against all claims, damages, losses and costs, including attorneys’ fees, that arise from or relate to:
- your activities on this Website;
- any content submitted by or on behalf of you; and
- your violation (including negligent or wrongful conduct) of these Terms.
9. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, SONOVA SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, ECONOMIC OR PURE ECONOMIC LOSSES, GOODWILL, USE, DATA, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, OR OTHER INTANGIBLE LOSSES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE; AND SONOVA’S TOTAL LIABILITY TO YOU FOR ALL CLAIMS, IN THE AGGREGATE, WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO SONOVA FOR THE PRODUCTS PURCHASED BY YOU OVER THE 12 MONTHS PRECEDING THE DATE YOUR FIRST CLAIM(S) AROSE. IN NO EVENT SHALL SONOVA BE RESPONSIBLE FOR PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE. NOTICE OF ANY CLAIMS CONCERNING THE PRODUCTS MUST BE MADE IN WRITING AND FURNISHED BY YOU TO SONOVA PROMPTLY UPON DISCOVERY AND IN NO EVENT LATER THAN 60 DAYS AFTER THE END OF THE APPLICABLE LIMITED WARRANTY. IN NO EVENT MAY ANY ACTION OR PROCEEDING CONCERNING THE PRODUCTS BE FILED MORE THAN ONE YEAR AFTER DELIVERY OF THE PRODUCTS CLAIMED TO BE DEFECTIVE OR UNSUITABLE OR, IN THE CASE OF OTHER CLAIMS CONCERNING THESE TERMS AND CONDITIONS, MORE THAN ONE YEAR AFTER SUCH CLAIM AROSE. IF YOU FAIL TO GIVE SONOVA NOTICE AS REQUIRED BY THIS PROVISION WITHIN THE SPECIFIED PERIOD, YOU WILL THEREAFTER BE BARRED FROM ASSERTING THE CLAIM FOR WHICH NOTICE WAS REQUIRED. IF YOU LIVE IN A JURISDICTION THAT DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION DOES NOT APPLY TO YOU. TO THE EXTENT THAT ONE OR ANY ASPECT OF SONOVA’S LIMITATIONS SET OUT ABOVE DOES NOT APPLY, ALL REMAINING ASPECTS SURVIVE. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SONOVA AND YOU.
10. Privacy Policy
You agree that Sonova may share your name, contact information and description of Products purchased or feedback or information provided to Sonova (through this Website or on a phone call with Sonova personnel) with Sonova’s affiliates and related companies, as well as any service providers with whom Sonova contracts to enable such professionals to provide follow-up health care items and/or services, or otherwise as necessary to provide the services you have requested.
Please review the Privacy Policy available here to learn about: (a) what information we may collect about you; (b) what we use that information for; and (c) with whom we share that information.
11. DISPUTE RESOLUTION: ARBITRATION REQUIREMENT, CLASS ACTION WAIVER AND NO JURY TRIALS
IMPORTANT – PLEASE READ – THE FOLLOWING AFFECTS YOUR LEGAL RIGHTS.
(a) Dispute Notice. In the event you have a dispute with Sonova, you must first send to Sonova a notice of the dispute so that Sonova may attempt to resolve it. The notice shall include a written statement that sets forth your name, address and contact information, the facts giving rise to the dispute and the relief you request (the “Dispute Notice”). The Dispute Notice to Sonova must be addressed to: Sonova at 750 N. Commons Drive, Suite 200, Aurora, IL 60504, Attention: Legal Department. If Sonova and you do not reach an agreement to resolve the dispute within sixty (60) days after Sonova receives the Dispute Notice, you or Sonova may commence an arbitration pursuant to Subsection (b) of this Section 11 of the Terms (or, in the event you have properly opted out of the arbitration agreement in Subsection (b) as set forth below, other proceeding).
(b) Binding Arbitration; No Right to Court or Jury. Any dispute, controversy or claim arising out of or related to these Terms, or breach thereof, or arising out of or related to the Products, whether the claim arises in contract, tort, or under statute or regulation, shall be EXCLUSIVELY SUBMITTED TO AND RESOLVED BY BINDING INDIVIDUAL ARBITRATION. All disputes concerning the arbitrability of a dispute, controversy or claim (including disputes about the scope, applicability, enforceability, revocability or validity of this arbitration provision) shall be decided by the arbitrator. Arbitration shall be administered exclusively by the National Arbitration and Mediation, LLC (“NAM”) in accordance with NAM's operative Comprehensive Dispute Resolution Rules and Procedures, including NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures, (the "NAM Rules") in effect at the time any demand for arbitration is filed with NAM, as modified by this Dispute Resolution Section of the Terms. For a copy of the NAM Rules and fee structure, please visit https://www.namadr.com/resources/rules-fees-forms or contact NAM at NAM's National Processing Center at 990 Stewart Avenue, 1st Floor, Garden City, NY 11530 or email address commercial@namadr.com.
NAM shall appoint a single neutral and independent arbitrator to hear the dispute. To the extent NAM allows the parties to participate in the selection process of the arbitrator, you and Sonova shall have equal rights of such participation. Each party may be represented at the arbitration by a lawyer of its choosing and each party shall bear its, his or her own attorneys’ fees. In the event you file an arbitration demand totaling less than $10,000 and it is not found to be part of a Mass Filing as defined in the NAM Rules, Sonova will either advance or reimburse you for the initial filing fee charged by NAM. The arbitration shall occur at a NAM location that is reasonably convenient for you, although it may be conducted virtually (video or telephonic) either in the arbitrator’s discretion or upon agreement of the parties. The arbitrator may only award a remedy or relief that would be available in a court of law or equity, subject to the waiver in Subsection (c) of this Section of the Terms. The arbitrator shall render a written, reasoned decision. The arbitrator's decision shall be final and binding and may be enforced by any state or federal court that has jurisdiction; provided, however, that the arbitrator shall not have authority to make errors of law and any arbitration award may be challenged if the arbitrator does so. You and Sonova agree that the Federal Arbitration Act shall govern this agreement to arbitrate. Any arbitration decision, regardless of whether it is confirmed by a court, is not res judicata or collateral estoppel (i.e., “does not resolve issues”) as to any other dispute.
If NAM is unable or unwilling to perform its duties under this Subsection (b) of this Section 11 of the Terms, the parties shall mutually agree on an alternative administrator that will replace NAM and assume NAM's role consistent with this Agreement. If the parties are unable to agree, they will petition a court of competent jurisdiction to appoint an administrator that will assume NAM's duties under this Agreement. Any arbitral award determination shall be final and binding on the parties. BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL DISPUTES, CONTROVERIES AND CLAIMS, subject only to the four exceptions provided in the following paragraph.
This arbitration agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, with only the following exceptions: you and Sonova agree that “dispute, controversy or claim” as referenced in the first sentence of this Subsection shall not include any claim or cause of action by you or by Sonova for (i) trade secret misappropriation, (ii) patent infringement, (iii) copyright infringement or misuse, and (iv) trademark infringement or dilution. Notwithstanding anything else in these Terms, you agree that a court, not the arbitrator, may decide if a claim falls within one of these four exceptions.
You may elect to exclude yourself from this arbitration requirement in this Subsection (b) of this Section of the Terms by sending a written letter (“Opt-Out Letter”) to Sonova at 750 N. Commons Drive, Suite 200, Aurora, IL 60504, Attention: Legal Department, within thirty (30) days of the earlier of your first use of this Website or first purchase of a Product. The Opt-Out Letter must specify: (i) your name; (ii) your mailing address; (iii) the Products purchased (or that no Product has been purchased); (iv) the date of purchase (if applicable); and (v) your request to be excluded from the arbitration requirement. In the event that you opt-out consistent with the procedure set forth above, all other terms shall continue to apply.
(c) Class Action Waiver. To the fullest extent allowable by law, you and Sonova both agree to waive any right to bring or participate in any class, collective, consolidated, representative or private attorney general action against the other, including without limitation any Mass Filing as defined under the NAM Rules (including NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures). This means, among other things, you cannot bring claims against Sonova as a class representative, class member or a private attorney general in a lawsuit or arbitration.
(d) Jury Waiver. If for any reason the arbitration agreement in this Section 11 of the Terms is found to be unenforceable or you have properly excluded yourself from the arbitration requirement in accordance with Subsection (b) of this Section of the Terms, you and Sonova expressly and knowingly WAIVE THE RIGHT TO TRIAL BY JURY. This means that a judge, and not a jury, will decide disputes between you and Sonova if, for any reason, this arbitration agreement is not enforced.
(e) Non-Severable. The provisions of this Section 11 of the Terms are mutually dependent and non-severable. If any part of this Section of the Terms is determined to be unenforceable for any reason, then this entire Section of the Terms, except for the class action waiver in Subsection (c) of this Section of the Terms and the jury waiver in Subsection (d) of this Section of the Terms, shall be unenforceable.
12. MISCELLANEOUS
Severability
With the exception of any of the provisions in the preceding Section of the Terms, if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
Governing Law
These Terms shall be governed by the Federal Arbitration Act and the laws of the State of Illinois, United States of America, without regard to principles of conflicts of law, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens, with respect to venue and jurisdiction in the federal and state courts with jurisdiction over Dupage County, Illinois. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply.
Interpretation
Headings are for convenience only and shall not be used to construe these Terms.
Waivers
No failure or delay by Sonova in exercising any right hereunder will waive any further exercise of that right. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Sonova. Sonova’s rights and remedies hereunder are cumulative and not exclusive.
Entire Agreement; Amendment
These Terms, including the Privacy Policy and the Sonova Consumer Webstore Returns Policy, Sonova Consumer Policy Against Return Fraud and Sonova Policy for Lost, Damaged or Stolen Consumer Shipments and the Warranty Conditions constitute the entire agreement and understanding between us concerning the subject matter of these Terms and supersede all prior agreements and understandings of the parties with respect to that subject matter. You may not attempt to alter, supplement, or amend these Terms by the use of any other document(s). Any attempt by you to alter, supplement or amend this document or to enter an order for the Products, which are subject to additional or altered terms and conditions, shall be null and void, unless otherwise agreed to in a written agreement signed by you and us. To the extent that anything in or associated with the Sonova website is in conflict or inconsistent with these Terms, these Terms shall take precedence.