Terms and Conditions – LifeEar App
It is important to the interests of AN Direct and LifeEar Corporation (collectively “LifeEar”) and those who use our technology that we have a shared understanding about the limits of what our technology can do. Accordingly, what follows will outline important limits that we must all understand and abide by, for the best interests of LifeEar and of those who use our technology.
PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY BEFORE USING THE MOBILE APPLICATION. THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION AND A WAIVER OF JURY TRIAL AND CLASS ACTION RIGHTS.
Use of the App
LifeEar grants You the right to access and use the App. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement.
Accessing the App
The LifeEar mobile application has been created to provide you with the possibility of controlling and personalizing your hearing experience directly from your mobile device. The App is intended to be used with the LifeEar device. The LifeEar mobile application sends and receives signals from the LifeEar device via mobile devices. Notifications of application updates should not be disabled, and it is recommended that You install all updates to ensure that the App will function correctly and will be kept up to date. The application must only be used with LifeEar devices for which it is intended.
LIFEEAR IS NOT A HEALTHCARE PROVIDER. THE APP IS NOT A MEDICAL DEVICE, IS NOT INTENDED TO SUBSTITUTE FOR ANY MEDICAL DEVICE, AND HAS NOT BEEN REVIEWED OR APPROVED BY THE FEDERAL FOOD AND DRUG ADMINISTRATION (“FDA”). PLEASE ALSO NOTE THAT INFORMATION COLLECTED AND STORED BY THE APP MAY NOT BE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (“HIPAA”). IF YOU HAVE A HEARING PROBLEM, LIFEEAR STRONGLY URGES YOU TO CONSULT WITH A QUALIFIED PHYSICIAN OR HEARING PROFESSIONAL.
Disclaimer of Warranties
Use of the APP is at your sole risk. You assume full responsibility for all risk associated therewith. All information, products, or services contained on or provided through or by LIFEEAR via this APP are provided “as is” and “as available,” without any warranties or conditions. LIFEEAR reserves the right, in its sole discretion and without any obligation, to correct any error or omissions in any portion of our APP, with or without notice to you.
To the fullest extent permissible under applicable law, LIFEEAR disclaims all representations and warranties, express or implied, statutory or otherwise. These include, but are not limited to, warranties of merchantability, fitness for a particular purpose, title, and non-infringement. You understand that LIFEEAR cannot and does not guarantee or warrant that files available for downloading from the APP or the Services will be free of viruses, malware, or other destructive code. LIFEEAR will not be liable for any loss or damage caused by any technologically harmful material that may infect your smart phone, computer equipment, computer programs, data, or other proprietary material due to your use of the APP or on any APP linked to it.
Without limiting the foregoing, LIFEEAR makes no warranty as to the security, reliability, availability, accuracy, quality, timeliness, usefulness, adequacy, completeness, or suitability of the APP. LIFEEAR does not guarantee upgrades. LIFEEAR has no obligation to keep the APP operational. The foregoing does not affect any warranties that cannot be excluded or limited under applicable law.
Limitation of Liability
In no event shall LIFEEAR be liable for any special, punitive, indirect, incidental, or consequential damages, including but not limited to personal injury, wrongful death, loss of goodwill, loss of use, emotional distress, loss of profits, interruption of service, or loss of data, whether in any action in warranty, contract, tort, or any other theory of liability (including, but not limited to negligence or fundamental breach), or otherwise arising out of or in any way connected with the use of, reliance on, or the inability to use, the APP. LIFEEAR shall not be subject to liability for the truth, accuracy, reliability, timeliness, or completeness of the content or any other information conveyed to YOU or for errors, mistakes, or omissions therein or for any delays or interruptions of the data or information stream from whatever cause. You agree that your use of the APP is at your own risk.
To the extent any of the above limitations of liability are restricted by applicable federal, state, or local law, such limitations shall not apply to the extent of such restrictions.
IF YOU ARE NOT SATISFIED WITH THE APP, YOUR SOLE AND EXCLUSIVE REMEDY IS TO TERMINATE YOUR USE OF THE APP.
You agree to indemnify, defend (subject to LifeEar’s right, in its sole discretion, to assume exclusive defense and control), and hold harmless LifeEar, its partners, consultants, officers, directors, employees, contractors, and advisors from and against all claims, losses, liability, expenses, damages, judgments, awards, and costs (including reasonable attorney’s fees), related to or arising from (i) any breach of this Agreement, (ii) Your use or misuse of any material or information posted, provided, transmitted, or otherwise made available by You or by LifeEar, or (iii) Your access or use of the App.
LifeEar reserves the right to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, You agree to cooperate with any reasonable requests assisting LifeEar’s defense of such matter.
All intellectual property rights in the LifeEar App and any documentation relating to the Services is property of LifeEar.
The LifeEar name, the LifeEar logo and all related names, logos, product and service names, designs, and slogans are trademarks of LifeEar. You must not use such marks without the prior written permission of LifeEar.
The App and its entire contents, features, and functionality (including but not limited to all information, software, code, HTML, text, displays, images, graphics, artwork, photographs, video and audio, and the design, selection, and arrangement thereof), are owned by LifeEar and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
Information About You and Your Use of the App
Limitations on Your Use of the App
You agree not to access or use the App in an unlawful way, for any unlawful purpose, or for any purposes other than its intended purposes. You agree not to (i) take any action that imposes an unreasonable load on the App’s infrastructure, (ii) use any device, software, or routine to interfere or attempt to interfere with the proper working of the App or any activity being conducted on the App, including any virus, worm, Trojan horse, or other code which is contaminating or destructive to the files or programs of the App, (iii) attempt to decipher, decompile, disassemble, or reverse engineer any of the software comprising or making up the App, or (iv) delete or alter any material posted on the App.
1. Governing Law
This Agreement shall be governed by the laws of the State of Illinois applicable to contracts made and performed there, without regard to its conflict of laws principles, and where applicable, the laws of the United States. You agree to the arbitration provision (#10 below) for any legal action or proceeding relating to the App or this Agreement. Any cause of action or claim You may have with respect to the use of the LifeEar App or this Agreement must be commenced within one (1) year after it arises, except to the extent such limitation is not enforceable.
2. Entire Agreement
3. Modifications to this Agreement
We may, without advance notice, supplement or change this Agreement at any time. Any changes made to this Agreement will be effective as soon as we post them on the App. By accessing the App, You agree to be bound by all the terms and conditions of this Agreement as posted on the App at the time of Your access or use. It is Your sole responsibility to review this Agreement each time You access the App so that You are aware of any changes to the Agreement. If any change to this Agreement is not acceptable to You, Your sole remedy is to cease using the App.
4. Modifications to the App
We are constantly changing and striving to improve the App. We may update the content pertaining to the App from time to time. We may add or remove functionalities or features, and we may suspend or stop the App altogether.
5. No Assignment
You may not assign or transfer any rights to any other person without LifeEar’s prior written consent.
The provisions of this Agreement are severable, and in the event any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining provisions, but such provision shall be reformed, if reasonably possible, only to the extent necessary to make it enforceable.
The provisions of this Agreement titled “Disclaimer of Warranties,” “Limitation of Liability,” “Indemnification,” “Intellectual Property,” “Governing Law,” “Entire Agreement,” “No Assignment,” “Waiver,” “Agreement to Arbitrate,” and “Waiver of Jury Trial and Class Actions” shall survive the termination of this Agreement.
8. Third Parties
This Agreement controls the relationship between LifeEar and You. A person who is not a party to this Agreement has no right to benefit under or to enforce any term of this Agreement.
If LifeEar does not exercise or enforce any particular right or provision in this Agreement, this does not mean that we are giving up any rights that we may have (such as taking action in the future), and LifeEar does not waive that right or provision.
LifeEar’s failure to exercise or delay in exercising any right hereunder, or failure to insist upon or enforce strict performance of any provision of this Agreement, shall not be considered waiver thereof, which can only be made by a signed writing. No single waiver shall be considered a continuing or permanent waiver.
10. Agreement to Arbitrate
This Agreement provides that all disputes between you and LifeEar will be resolved by BINDING ARBITRATION. The location of this arbitration shall be Chicago, Illinois. You thus GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
11. Waiver of Jury Trial and Class Actions
By entering into THIS AGREEMENT, you and LifeEar acknowledge and agree to waive certain rights to litigate disputes in court, to receive a jury trial, or to participate as a plaintiff or as a class member in any claim on a class or consolidated basis or in a representative capacity. You and LifeEar agree that any arbitration will be conducted on an individual basis and not a consolidated, class-wide, or representative basis, and the arbitrator shall have no authority to proceed with arbitration on a class or representative basis. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If for any reason the arbitration clause set forth in THIS AGREEMENT is deemed inapplicable or invalid, or to the extent the arbitration clause allows for litigation of disputes in court, you and LifeEar, both waive, to the fullest extent allowed by law, any right to pursue or to participate as a plaintiff or as a class member in any claim on a class or consolidated basis or in a representative capacity.
You agree that if You breach of any term of this Agreement, including the foregoing representations, LifeEar has the right to suspend or terminate Your use of the App, and You will defend and indemnify LifeEar and its affiliates against any liability, costs, or damages arising out of the breach of the representation.
Your Comments and Concerns
LifeEar operates the App. Please direct all feedback, comments, requests for technical support, and other communications relating to the App to: firstname.lastname@example.org, 24151 Telegraph Rd., STE 140, Southfield, Michigan 48033.