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User Agreement

PLEASE READ THIS USER AGREEMENT (THIS “AGREEMENT”) CAREFULLY PRIOR TO YOUR USE OF THIS WEBSITE, WWW.LISTENCLEAR.COM (THE “SITE”).

BY CLICKING ON THE “I AGREE” BUTTON ON THE SITE AND THEREAFTER UTILIZING THE SITE, YOU (“USER” or “YOU”) HEREBY AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT WHICH INCORPORATES BY REFERENCE THE PRIVACY POLICY POSTED ON THE SITE, AS BOTH ARE AMENDED FROM TIME TO TIME. IF THIS AGREEMENT IS NOT ACCEPTABLE AND YOU ARE UNWILLING TO BE BOUND BY IT, PLEASE DO NOT CLICK ON THE “I AGREE” BUTTON OR OTHERWISE USE THE SITE OR ENTER ANY INFORMATION ABOUT YOURSELF OR MAKE ANY TRANSACTIONS THROUGH THIS SITE.

ListenClear, a Georgia limited liability company (referred to as “we” or “us”), is the owner and operator of this Site and the distributor of the Products (as defined below) sold thereon.

Eligibility and User’s Warranties and Representations.

We intend that this Site and the Products be used by adults only and Users that can form legally binding contracts under applicable law. Without limiting the foregoing, this Site and the Products should not be used by minors. If you do not qualify, you are not permitted to use this Site or order the Products, and you do not have our consent to do so.

Fraud

Without limiting any other remedies, we may suspend or terminate your account if you are found (by conviction, settlement, insurance or escrow investigation, or otherwise) to have engaged in fraudulent activity in connection with this Site.

Links to Third Party Websites.

We may provide links to web pages which are not part of our web family.  These sites are not under our control and we are not responsible for the information or links you may find there. We are providing these links only as a convenience. The presence of these links on this Site or any of our websites is not intended to imply our endorsement of that site but to provide a convenient link to relevant sites which are managed by other organizations, companies, or individuals. Accordingly, this Agreement does not apply to your use of unaffiliated sites to which this Site only provides links.

User’s Information.

“User’s Information” is defined as any information or other material you provide to us or others in connection with this Site. Except as otherwise provided in our Privacy Policy, you are solely responsible for User’s Information, and we act as a passive conduit for the online distribution of User’s Information. We reserve, however, the right to modify or remove from this Site, all or any portion of User’s Information or other material that we, in our sole discretion, consider infringing, offensive, abusive, defamatory, obscene, or otherwise unacceptable or unlawful.  We also reserve the right to edit User’s Information or other materials for any other reason consistent with the purposes of this Agreement or this Site.

Access and Interference.

Use of the Site and Products. The contents of this Site are protected by copyright, trademark, trade secret and other laws and are the sole and exclusive property of us and/or other owners. We grant you a limited license and right to access and make personal use of the Products and the Site, in order to obtain information about, and/or to purchase the Products. This limited right and license does not include any resale or commercial use of this Site or its contents or the Products; any collection and use of any Products, descriptions, or prices; any derivative use of this Site or its contents; any downloading or copying of account information for the benefit of any third party; or any use of data mining, robots, or similar data gathering and extraction tools. This Site or any portion of this Site, may not be reproduced, duplicated, copied, sold, resold, visited, modified or otherwise exploited for any commercial purpose without our express written consent. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information or materials (including images, text, page layout, or form) of ours or of any third party on this Site without our express written consent. You may not use any meta tags or any other “hidden text” utilizing our name or trademarks without our express written consent. Any unauthorized use of this Site terminates the permission and license granted by us. You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of this Site so long as the link does not portray us or any Products offered on the Site in a false, misleading, derogatory, or other manner which we deem offensive. You may not use any logo or other proprietary graphic or trademark on the Site as part of the link without our express written permission. You will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site. You will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure.

Breach

Without limiting other rights or remedies set forth in this Agreement or as otherwise available by law, we may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your access to this Site in whole or in part: (a) if you breach this Agreement; (b) if we are unable to verify or authenticate any information you provide to us, should we elect to engage in such verification; or (c) if we believe in our sole discretion that your actions may cause legal liability for you, other users, us or third parties.

Privacy

Our current Privacy Policy is available on this Site and is incorporated in this Agreement by reference. We may change our Privacy Policy from time to time, as stated therein.

Warranty Disclaimers and Liability Limitations.

We are the owner and distributor of the various products described and/or offered for sale on this site, including, without limitation, our hearing aid products and related supplies (collectively, the “Products”). WE MAKE NO REPRESENTATION OR WARRANTIES WITH RESPECT TO THE ACCURACY, APPLICABILITY, FITNESS, OR COMPLETENESS OF THE CONTENTS OF THIS SITE OR THE PRODUCTS

THE INFORMATION PRESENTED ON THIS SITE IS NOT INTENDED TO BE MEDICAL ADVICE AND SHOULD NOT BE RELIED ON BY YOU AS SUCH.  IF YOU SUSPECT A HEARING PROBLEM, WE STRONGLY ENCOURAGE YOU TO CONSULT WITH A QUALIFIED MEDICAL OR HEARING PROFESSIONAL.

VIEW FDA COMPLIANCE WAIVER

WE expressly disclaim any and all warranties (express or implied) including but not limited to, the warranties of merchantability, or fitness for any particular purpose IN CONNECTION WITH THE PRODUCTS OR THIS SITE OR YOUR USE OF SAME. WE DO NOT WARRANT THAT THIS SITE, ITS SERVERS, OR E-MAIL SENT FROM THE SITE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

WE shall in no event be held liable to YOU OR any OTHER party for any direct, indirect, punitive, special, incidental or other consequential damages arising directly or indirectly from any use of this SITE OR THE PRODUCTS, ALL OF which ARE provided “as is”, and without warranties OF ANY KIND.

OUR LIABILITY, AND THE LIABILITY OF OUR AFFILIATES, OR ANY OF OUR OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS OR SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE PURCHASE PRICE PAID BY YOU FOR THE PRODUCTS OR FOR USE OF THIS SITE.

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES OR LIABILITIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

We do not warrant the performance, effectiveness or applicability of any sites listed or linked to in this Site or the Products.

All links are for information purposes only and are not warranted for content, accuracy or any other implied or explicit purpose.

[Message from the FDA]

Returns/Refunds and Shipping.

Please click on the following links to review our current return and refund policy and shipping policy, which are incorporated herein by reference.

Indemnity.

You agree to indemnify, defend and hold us, our subsidiaries and affiliates, and each of their and our officers, directors, members, managers, agents, owners, employees, independent contractors and suppliers, harmless from any claim, demand, action, cost and expense, including reasonable attorneys’ fees, due to or arising out of the following events: (i) your giving us any information which is inaccurate; (ii) your breach of any warranty, representation or other obligation set forth in this Agreement; (iii) your negligence or willful misconduct; (iv) your violation of any law, regulation or right of any third party; (v) any dispute or action between you and any third party, including parties selling goods or services through this Site; and (vi) your use of this Site or the Products, except for claims resulting solely from our negligence or willful misconduct.

Release; Covenant Not To Sue.

You hereby release, agree and covenant not to sue us, our subsidiaries and affiliates, and our or their officers, directors, owners, agents, employees, suppliers and independent contractors, from or in connection with any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with the Products or your use of this Site, other than willful misconduct or our failure to honor an express commitment posted on this Site (i.e., if we fail to deliver Products to you which you paid for). If you are a California resident, you hereby waive California Civil Code §1542, which says: “a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

Notices.

Except as explicitly stated otherwise, any notices shall be given by postal mail to us 5 Mall Terrace Savannah Georgia 31406 and to you at the email address you provide to us. Notice shall be deemed given 24 hours after email is sent, unless we are notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided by you. In such case, notice shall be deemed given 3 days after the date of mailing.

Arbitration.

Any controversy or claim between you and us or our subsidiaries and affiliates, and our or their officers, directors and employees, arising out of or relating to this Agreement or your use of this Site or the Products, shall be settled by binding arbitration, before a single arbitrator, in accordance with the commercial arbitration rules of JAMS which shall administer the arbitration. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party, nor shall arbitration on a class action basis be permitted. The arbitration award shall be in writing and shall include findings of fact and conclusions of law. Judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either party may seek any interim or preliminary relief from a court of competent jurisdiction necessary to protect the rights or property of either party pending the completion of arbitration.

Taxes.

You are responsible for paying any taxes that may be assessed or otherwise due in connection with any transactions or purchases that you make through us or the Site.

General.

Choice of Law, Headings and Non-waiver.  This Agreement shall be exclusively construed, interpreted, governed and enforced in accordance with the laws of the State of Georgia, USA without regard to rules governing conflicts of laws, except that in underlying transactions involving commerce, the enforcement of this arbitration provision shall be governed by the Federal Arbitration Act. The parties further agree that this Agreement shall be deemed to have been negotiated, entered into, executed and performed for all purposes within the State of Georgia. Either party’s failure to act with respect to a breach does not waive the non-breaching party’s right to act with respect to subsequent or similar breaches.

Severability.   The invalidity of any portion of this Agreement will not affect the validity of any other provision and any such finding of invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. In the event that any provision of this Agreement is held to be invalid or unenforceable, the parties agree that the remaining provisions will be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision. It is expressly understood, however, that the parties hereto intend each and every provision of this Agreement to be valid and enforceable and hereby knowingly waive all rights to object to any provision of this Agreement to the full extent permitted by law. Accordingly, if any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision(s) will, rather than be stricken in their entirety, be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.

Entire Agreement; Amendment.  This Agreement contains the entire Agreement of the parties relating to its subject matter and supersedes any prior or contemporaneous agreements, negotiations, correspondence, understandings or communications, whether oral or written.  This Agreement may not be modified or amended except in writing, signed by both parties, or as otherwise provided herein. Because of changes in Internet technology and practices, this Agreement and our security and other policies may change from time to time.  Each time that you visit this Site to make a purchase, please consult this portion of the Site for important changes to the Agreement that may have occurred since your last online purchase. Unless otherwise provided in a separate written agreement between you and us, by making a purchase through this Site after we post any changes to this Agreement, you agree to accept those changes, whether or not you have reviewed them, and such acceptance shall be deemed legally conclusive.  If at any time you choose not to accept the terms of this Agreement, you will not use this Site. This Agreement applies to your use of this Site or other sites that we may own or operate in the future, unless such sites provide otherwise.

Continuing Cooperation.  The parties agree to execute any documents or perform such other and further acts as are reasonably necessary to comply with the letter and spirit of this Agreement.

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