Last Revised: October 1, 2019
2. GENERAL PROVISIONS
ListenClear sells hearing-aids and related products such as batteries and cleaning kits, via telephone and through the Site, to its customers.
By entering the Site, you acknowledge and agree to all terms, conditions, and rules stated in these Terms. You are not permitted to use the Site if you do not agree to be legally bound by these Terms. Please read these Terms carefully.
The Site provides you with information about our products and services. All of this information and any other information we provide to you through the Site is referred to herein as “Content.” Although we and all parties involved in creating, producing, or delivering Content make all reasonable efforts to ensure that it is correct and up-to-date, we cannot guarantee 100% accuracy. WE THEREFORE DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES REGARDING SECURITY, CURRENCY, CORRECTNESS, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, PERFORMANCE, TIMELINESS, OR CONTINUED AVAILABILITY WITH RESPECT TO THE SITE, SERVICES, AND CONTENT. To the extent any jurisdiction does not allow the exclusion of certain warranties, some of the above exclusions do not apply.
4. INTELLECTUAL PROPERTY
All images, text, sound, photos, custom graphics, button icons, the collection and compilation and assembly thereof, and the overall “look and feel” and distinctiveness of the Site constitute trade dress and are either the property of us or used on this Site or in connection with the Services with permission. The absence on the Site of a product- or service-related name or logo does not constitute a waiver of our trademark or other intellectual property rights relating to such name or logo. All other product and service names, company names, marks, logos, and symbols appearing on the Site are the trademarks and the property of their respective owners.
You acknowledge and agree that information, and products and services available on the Site are protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws and are owned or licensed by us. Except as expressly authorized by us, either in these Terms or elsewhere, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from the Site or Content. Without waiving any of the foregoing rights, you may print or download information from the Site for your own personal, non-commercial home use, provided that you keep intact all copyright and other proprietary notices. Systematic retrieval of information from the Site to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us is prohibited.
Subject to these Terms, ListenClear grants you a non-exclusive, non-transferable, revocable license to use the Site solely in order to access the Services provided. This license will govern any upgrades or modifications to the Services, unless such upgrade is accompanied by a separate or modified license, in which case the terms of that license will govern. We reserve the right to terminate such license at any time and for any or no reason.
5. DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE
If you believe that any material on the Site infringes your copyright rights, please contact our designated agent for Digital Millennium Copyright Act notices at:
ICOT Hearing Systems, LLC dba ListenClear
300 Bull Street, Suite 200
Savannah, GA 31401
In your notice, please include:
- You physical or electronic signature;
- Identification of the material that you claim to be infringing, and where the material is located on the Site;
- Your address, telephone number, and email address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by you or the law; and
- A statement, under penalty of perjury, that the information in your notice is accurate.
The Site may let you submit material to us or to third parties: for example, you may be able to upload a photo, send us messages, request to be contacted by us, or post a review about our products. In these Terms, we use “Submissions” to refer to any material of any kind that you submit to us or third parties through the Site, including text, files, images, photos, video, sounds, and musical or literary works.
We are not responsible for the content of Submissions provided by you or any other user. We do not endorse any opinion contained in such material. We make no warranties or representations, express or implied, about Submissions, including as to their legality or accuracy.
We reserve the right, in our sole discretion, to refuse, remove, or edit any of your Submissions, or to restrict, suspend, or terminate your access to all or any part of the Site, and we may do this with or without giving you any prior notice.
We may link Submissions or parts of Submissions to other material, including material submitted by other users or created by us or third parties. We may use Submissions for our internal business purposes, for example, to examine trends or categories or to promote, market, or advertise our products. You acknowledge that we may commercially benefit from use of your Submissions.
Each time you make a Submission, you represent and warrant as follows:
- You own your Submission or have the right to submit it, and in submitting it you will not be infringing any rights of any third party, including intellectual property rights (such as copyright or trademark), privacy or publicity rights, rights of confidentiality, or rights under contract.
- Your Submission is not illegal, obscene, defamatory, threatening, pornographic, harassing, hateful, racially or ethnically offensive, and does not encourage conduct that would be considered a criminal offense, and does not give rise to civil liability, violate any law, or is otherwise deemed inappropriate.
- Your Submission does not advertise any product or service or solicit any business.
- Your Submission does not identify any individual (including by way of name, address, picture, or video) under the age of 18 and if your Submission identifies any individual over the age of 18, you have that person’s consent to being identified in exactly that way in your Submission.
- You are not impersonating any other person.
- You will not collect usernames and/or email addresses of others for the purpose of sending unsolicited email.
- You will not engage in criminal or tortious activity, including fraud, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets or attempt to impersonate another user or person.
- You will not engage in any automated use of the system, such as using scripts to alter our Content.
- You will not, without authorization, access, tamper with, or use non-public areas of the Site or the Services, our computer systems, or the technical delivery systems of our service providers.
- Except as necessary to maintain your own computer security by use of commercial-off-the-shelf anti-virus or anti-malware products, you will not attempt to probe, scan, or test the vulnerability of the Site or the Services or any other component of our system or network or breach any security or authentication measures.
We are entitled to identify you to third parties who claim that their rights have been infringed by your Submission.
Submissions are not considered to be confidential. You agree not to make any Submission in which you have any expectation of privacy. We do not claim any ownership rights in Submissions; however, by making a Submission you hereby grant us an irrevocable, perpetual, fully sub-licensable, non-exclusive, royalty-free, worldwide license to use, telecast, copy, perform, display, edit, distribute, reproduce, modify, adapt, and otherwise exploit the Submission, or any portion thereof, and any ideas, concepts, or know how contained therein, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity, in any manner (including, without limitation, for commercial, publicity, trade, promotional, or advertising purposes) and in any and all media now known or hereafter devised, and to prepare derivative works of, or incorporate into other works, such Submission, and to grant and authorize sublicenses of the foregoing without any payment of money or any other form of consideration to you or to any third party. You represent and warrant that you own or otherwise control the rights to your Submission. You agree to indemnify us and our Affiliates (as defined below) for all claims arising from or in connection with any claims to any rights in your Submission or any damages arising from your Submission.
7. DISCLAIMERS & LIMITATION OF LIABILITY
YOU USE THE SITE AT YOUR OWN RISK. THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR AFFILIATES, MERCHANTS, DISTRIBUTORS, SERVICE PROVIDERS, VENDORS, AND LICENSEES, AND OUR AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, MANAGERS, DIRECTORS, SHAREHOLDERS, MEMBERS, PARENTS, SUBSIDIARIES, CORPORATE AFFILIATES, AGENTS, AND LICENSORS (REFERRED TO COLLECTIVELY AS “AFFILIATES”) DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SITE (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT).
IN PARTICULAR, WE AND OUR AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE AVAILABILITY, QUANTITY, ACCURACY, OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SITE OR THE CONTENT OF ANY WEBSITES OR RESOURCES LINKED TO THE SITE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (B) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SITE; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SITE OR OF ANY PERSONAL OR FINANCIAL INFORMATION; (D) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SITE; (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SITE; OR (F) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE SITE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WE NOR OUR AFFILIATES WILL BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO USE OF THE SITE.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent we may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such law.
You agree to defend, indemnify, and hold us, our Affiliates, third-party service providers, employees, contractors, agents, officers, and directors harmless from any and all liabilities, claims, demands, suits, investigations, losses, judgments, costs, and expenses (including reasonable attorneys’ fees and costs) that arise out of or are related to your violation or alleged violation of these Terms or use of the Site.
9. DISPUTE RESOLUTION
These Terms will be governed by and construed in accordance with the laws of the State of Georgia, without regard to any conflicts of laws principles. Any controversy or claim arising out of or relating to the Terms or your use of the Site, including, without limitation, any claims related to marketing communications made by us or at our direction based upon your request to be contacted submitted through the Site, shall be resolved by mandatory binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules (if you are a business) or its Consumer Arbitration Rules (if you are a natural person), and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The demand for arbitration shall be made shall be made no more than one year from when the aggrieved party knew or should have known of the controversy or facts forming the basis of the claim. To the fullest extent permitted by law: (a) no arbitration will be joined with any other; (b) there is no right or authority for any dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. By agreeing to these Terms and using the Site, you acknowledge and agree that, to the fullest extent permitted by applicable law:
- YOU ARE WAIVING YOUR RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY DISPUTE ALLEGED AGAINST US OR OUR AFFILIATES;
- YOU ARE WAIVING YOUR RIGHT TO HAVE A COURT RESOLVE ANY DISPUTE ALLEGED AGAINST US OR OUR AFFILIATES; and
- YOU ARE WAIVING YOUR RIGHT TO SERVE AS A CLASS REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, AND/OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT OR JOINT ARBITRAITON FILED AGAINST US AND/OR OUR AFFILIATES.
Should you file a claim contrary to this Section, we may seek recovery of our attorneys’ fees and costs, provided that we have first notified you of the improperly filed claim and you have failed to promptly withdraw the claim. The arbitrator shall not have the power to award punitive damages against any party. If any portion of this arbitration provision is deemed invalid or unenforceable, the remaining portions of the provision will remain in force. Any questions or matters submitted to a court for resolution shall be submitted to the state or federal courts of Chatham County, Georgia and all parties agree to the personal jurisdiction thereof.
10. PRIVACY & SECURITY
12. NOTICE TO CALIFORNIA RESIDENTS
Under California Civil Code Section 1789.3, California residents are entitled to the following information: The provider of the Site is ICOT Hearing Systems, LLC doing business as ListenClear. To file a complaint regarding the Site or to receive further information about the Site, please contact us at the contact information below. You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210.
13. CONTACT INFORMATION
If you have any questions, complaints, or claims, please contact us at:
ICOT Hearing Systems, LLC dba ListenClear
300 Bull Street, Suite 200
Savannah, GA 31401
You must be at least 18 years old to use the Site.
We always welcome and appreciate your feedback and suggestions. You understand that we cannot necessarily respond to or implement feedback or suggestions, but if we do, you understand and agree that we may use them without compensation to you.
16. CHANGES AND CORRECTIONS TO THE SITE
We enhance and update the Site often. We may change or discontinue the Site or any products or services, with or without notice to you. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice. We do not guarantee the continued availability of any Content or features of the Site. We suggest periodically visiting this page of the Site to review these Terms.
We reserve the right not to provide the Site or our products and services to any user. We also reserve the right to terminate any user’s right to access the Site at any time, in our discretion. If you violate any of these Terms, your permission to use the Site automatically terminates.
18. OTHER PROVISIONS
Under no circumstances will we be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond its reasonable control.
If any provision or part thereof of these Terms is found to be unlawful, void, or unenforceable, then that provision or part thereof will be deemed severable from these Terms and will not affect the validity or enforceability of any remaining provisions.
Our failure to enforce any right or provision of these Terms will not prevent us from enforcing such right or provision in the future.
We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, a sale of assets or by operation of law. You may not assign your rights and obligations under these Terms without our written consent.
19. FDA Waiver
The federal Food and Drug Administration (“FDA”) requires ListenClear to provide you certain information. This information will also be included on an insert in your package after making a purchase from us. The FDA also requires that the following information and disclosures be made prior to you completing a purchase:
First, you agree you are over the age of 18.
Second, the FDA wants you to know that it’s in your best health interest to have a medical evaluation by a physician, preferably one who specializes in diseases of the ear, before purchasing a hearing aid. By proceeding, you acknowledge that you’ve been informed about the importance of having your ears checked for medical conditions, but that you still wish to proceed without first getting an evaluation.
Third, the FDA thinks it’s important you see a physician if you have any of the following conditions. By proceeding, you acknowledge receipt of this information, and you agree that none of these symptoms or conditions apply to you or the person that will be wearing the hearing aid:
Visible deformity of the ear; fluid or drainage from the ear within the past 90 days; sudden, rapidly progressing, or fluctuating hearing loss; spells of acute or chronic dizziness; hearing loss only on one side that has worsened in the past 90 days, ear canal blockage, a lasting ear infection or a plugged up fullness feeling- excessive wax buildup or a history of excessive wax buildup; pain or discomfort in the ear.
20. CHANGES TO THESE TERMS
From time to time, we may change these Terms. If we change these Terms, we will inform you by posting the revised Terms on the Site. Those changes will go into effect on the Revision Date shown in the revised Terms. By continuing to use our Site, you agree to the revised Terms. If the change is a “material change” that requires us to notify you pursuant to applicable law, we will notify you by (i) email to the email address we have on record and/or (ii) by posting an alert on the Site at least fourteen (14) days before the date the revised Terms are effective. If you object to any changes, your sole recourse shall be to cease using the Site.