Thank you for your interest in EarBrowse. In this Visitor Agreement, the terms "EarBrowse," "we," "us," and "our" refer to EarBrowse.com and the terms "you" and "your" refer to you as a user of our websites, mobile and other online applications and products and services (collectively, the "EarBrowse Sites").
By using the EarBrowse Sites, you accept the terms of this Visitor Agreement. This is a legally binding agreement between you and EarBrowse; please read it carefully. When using the EarBrowse Sites, you may be subject to other posted terms and guidelines applicable to certain services available on or through the EarBrowse Sites. All terms and guidelines on the EarBrowse Sites, including our Privacy Statement, are part of this Visitor Agreement and incorporated herein by reference. Unless explicitly stated otherwise, any features or services available at any time on the EarBrowse Sites are subject to this Visitor Agreement. Accessing the EarBrowse Sites in any manner, even through automated means, constitutes your use of the EarBrowse Sites and your agreement to be bound by this Visitor Agreement. EarBrowse may change the terms of this Visitor Agreement from time to time and will revise the effective date when it does so. Your continued use of the EarBrowse Sites after the posted effective date constitutes your agreement to be bound by this Visitor Agreement as modified, except that modifications do not apply to any dispute arising prior to their effective date. EarBrowse may change, restrict access to, suspend, or discontinue the EarBrowse Sites, or any portion thereof.
The material that appears on the EarBrowse Sites is for general informational purposes only. While we aim to provide a site that is useful, be mindful that the EarBrowse Sites may, from time to time, contain errors. The EarBrowse Sites includes materials and information collected from and provided by third parties that we may not have evaluated or reviewed. We make no guarantees regarding the accuracy, completeness, timeliness, or reliability of any of the materials or information on the EarBrowse Sites, and you should not rely on it without independent verification.
We invite you to bring to our attention any materials or information on the EarBrowse Sites that you believe to be inaccurate. Please forward a copy of the materials or information to our Customer Service Department, along with an explanation of the inaccuracies.
Buying and Selling Hearing Devices
EarBrowse.com is a hearing aid listing and information service that brings together buyers and sellers. EarBrowse is not a party to any transaction between hearing aid buyers and sellers that originates on or through the EarBrowse Sites. Information regarding a particular hearing aid is supplied by the seller, not by EarBrowse. The price and other terms of any sale remain subject to direct negotiation between the buyer and the seller.
Though we hope that all who come to the EarBrowse Sites will act honorably and treat each other fairly, we cannot verify the information that sellers supply or guarantee the hearing aids they offer. Nor can we assure the seller of a hearing aid that the payment he or she receives from the buyer is legitimate. When using the EarBrowse Sites to find a buyer for hearing aids or a hearing aid to purchase, we urge you to use the same common sense and good judgment.
Buying a Hearing aid
The prices listed by sellers on the EarBrowse Sites often exclude sales tax and may vary based on service included, any or all of which may be added to the listed price to arrive at the final sale price of a particular hearing aid. Before purchasing a hearing aid or any other good or service you have read about on the EarBrowse Sites, you should confirm with the seller any information, including the price or service plan that is important to your purchasing decision. EarBrowse is not responsible for, and does not guarantee the performance of, any such hearing aids, goods or services listed or researched on the EarBrowse Sites.
We may screen some email messages sent through the EarBrowse Sites to sellers about hearing aids listed on the EarBrowse Sites. If it appears that your email message has not reached the seller of the hearing aid you are inquiring about, you might try inquiring by telephone if the seller has provided a telephone number.
Neither EarBrowse nor the manufacturer is responsible for the accuracy of any information contained in a hearing aid listing.
Listing Your Hearing Aid
In order for you to offer a hearing aid for sale through our listing service for private sellers, you must agree to our Terms of Sale. The Terms of Sale require, among other things, that you be prepared to sell your hearing aid at the price at which, and on the terms on which, you have listed it. You must have possession of the actual hearing aid listed and the ability to dispense it. To list a hearing aid for sale on the EarBrowse Sites, sellers also are required to provide certain identifying and contact information. The information must accurately identify the seller and the method of contact must permit buyers to communicate directly with the seller. You may not charge any potential buyer for information about any hearing aid listed for sale on the EarBrowse Sites, nor may you use the EarBrowse Sites to promote, without our prior written permission, any other website, product, or service.
By using the EarBrowse Sites to sell hearing aids as a private seller, you represent that you are at least 18 years of age. When you list a hearing aid for sale through our site, we may obtain additional distribution for your listing through our relationships with other websites. We also may promote your listing on or through third-party websites or services. Neither EarBrowse nor any website through which we distribute or promote your listing will charge you any additional fee for this additional exposure. It is simply added value from EarBrowse. Our promotional partners will not contact you with offers to sell you additional distribution or add-on advertising services for your listing without your permission. If third parties contact you without your permission offering to sell you such services, they have likely misused the EarBrowse Sites and violated this Visitor Agreement to exploit your listing information. If you receive any such solicitations that you did not authorize, please bring them to our attention by using our contact us form.
By using the EarBrowse Sites to sell your hearing aids, you agree to pay the price of the package you select and the prices of any advertising upgrades, regardless of whether you sell any hearing aids as a result of the listing. You also agree to pay any applicable taxes relating to your use of the hearing aid listing service. Click here for our Refund Policy.
Responsibility for the information contained in each listing lies with each seller. You alone are responsible for the material you post, including listing information and the content of all email messages you transmit through the EarBrowse Sites. Nothing will undermine a user's confidence in the hearing aid you are looking to sell faster than inaccurate statements or misleading representations about the hearing aid or corresponding service. We are committed to making sure that the information you supply is accurate and that, in all respects, you treat other users of the EarBrowse Sites fairly and honorably.
In connection with our efforts to combat Internet fraud, some listings may be screened before being posted publicly. This process may delay the publication of your listing. Though we cannot monitor every transaction that originates through a listing on the EarBrowse Sites, we may, from time to time, perform random quality assurance tests to confirm that those who offer hearing aids for sale over the EarBrowse Sites are prepared to sell those hearing aids at the prices and on the terms which such hearing aids are advertised. By using the EarBrowse Sites, you agree to cooperate in these quality assurance tests. If our tests reveal, or we otherwise learn, that a seller may be violating the terms of this Visitor Agreement, we reserve the right to deny that seller use of services offered on the EarBrowse Sites and any affiliated websites and remove that seller's listings from each site.
By listing a hearing aid for sale on the EarBrowse Sites, you agree to use the email addresses of those responding to your listing only to communicate with them about the potential sale of that hearing aid.
Participating Hearing Professionals
Participating hearing professionals pay us an annual subscription to list hearing aids and receive leads through EarBrowse sites.
By submitting a request for hearing aid information, you agree not to sue EarBrowse, its affiliates, its service providers, or its or their respective officers, directors, employees and agents (collectively, the "released parties") for, and agree to release and hold harmless the released parties from and against, any and all claims relating to or arising out of any hearing aid sale that you enter into with a participating hearing professional. In the event that any claims or disputes arise out of such a transaction, you agree to look solely to your participating hearing professional for your remedy and not to the released parties.
For your convenience, we make available a variety of links to other websites that we do not operate where you can obtain information on hearing-related products and services, including insurance, warranties, and financing. You release EarBrowse and its affiliates from any damages that you may incur, and agree not to assert any claims against them, arising from your purchase or use of third-party supplied products and services. Although we make available links to the websites of third-party providers of products and services, we are not responsible for the prices, terms, quality, reliability, or performance of the products or services provided by them. Your correspondence or business dealings with, or participation in the promotions of, vendors or other third parties found on or through the EarBrowse Sites, including payment and delivery of goods or services and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party. We are not responsible or liable for any loss or damage incurred as the result of such dealings with or the presence of such third parties on the EarBrowse Sites.
For your convenience, we make available links to websites operated by hearing care professionals that list their hearing aids on the EarBrowse Sites. We are not responsible for any of the content that appears on these websites, including, without limitation, promotional contests and sweepstakes offers. We do not co-sponsor, operate, endorse, or guarantee any advertiser sweepstakes or contest offer that may be promoted from time to time on the EarBrowse Sites, or that may be accessible through a link from the EarBrowse Sites, and you release EarBrowse and our affiliates from any damages that you may incur, and agree not to assert any claims against any of them, arising from your entry, participation, or acceptance of any prize in any such sweepstakes or contest offer.
Ownership and Permissions
You are free to establish a hypertext link to the EarBrowse Sites so long as the link does not state or imply any endorsement or sponsorship of you, your company, or your website by EarBrowse or any of our affiliates. However, without our prior written permission, you may not frame any of the content of the EarBrowse Sites, nor incorporate into another website or service any intellectual property of EarBrowse or its licensors. Requests for permission to frame our content or use our content in any way that is not expressly described in this Visitor Agreement should be sent to our Customer Service Department, either by email or to the mailing address above.
EarBrowse and the EarBrowse logo are all trademarks owned by us. The names of other products and services referred to on the EarBrowse Sites may be the trademarks of their respective owners. You may not use any trademark or service mark appearing on the EarBrowse Sites without the prior written consent of the owner of the mark.
You acknowledge that by transmitting or posting any material on or through the EarBrowse Sites, you grant us, or anyone authorized by us, an unrestricted, non-exclusive, worldwide, royalty-free, perpetual, irrevocable, license to use, modify, perform, display, broadcast, reproduce, create derivative works from, transmit, sell or otherwise use, exploit or distribute, at no cost whatsoever, all such material (including, without limitation, all intellectual property rights embodied therein), in whole or in part, in any manner or medium (whether now known or hereafter developed), for any purpose. The foregoing license includes the right to exploit any proprietary rights in such material, including, but not limited to, rights under copyright, trademark, or patent laws that exist in any applicable jurisdiction. Also, in connection with the exercise of these rights, you grant us and anyone authorized by us, the right to identify you as the author of such material by name, email address or user name, and to use your image and likeness if provided, in connection with such material. You will not receive any compensation of any kind for the use of any material you transmit or post via the EarBrowse Sites. Among other uses of user materials, the EarBrowse Sites uses listings data to derive useful information (such as hearing aid valuation information) for display, sale and distribution.
The EarBrowse Sites allows users to publish listings, ratings, and reviews and to access social media tools where users may post material accessible to others or transmit communications to others. Some of these tools may be operated by third parties, and your use of them is subject to both the terms of this Visitor Agreement and to the policies of their third-party providers.
You assume total responsibility and risk for your use of any interactive areas of the EarBrowse Sites. You acknowledge that any of the user-generated content posted or transmitted through the EarBrowse Sites represents the views of the author, and not of EarBrowse. You also acknowledge that your use of or reliance on such content is at your own risk.
When publishing anything to the EarBrowse Sites or using any social media tools or interactive features, you agree that you will not post or transmit:
any copyrighted material unless you own or control the copyright in and to such material;
material that is: knowingly false and/or defamatory, inaccurate, libelous, tortuous, abusive, vulgar, hateful, racist, bigoted, sexist, harassing, threatening, inflammatory, obscene, profane, sexually oriented, invasive of a person's privacy, or is otherwise objectionable or in violation of any applicable law, rule, or regulation;
material that violates or infringes the rights of any other party, including, without limitation, rights of privacy, rights of publicity, copyright, trademark, or other intellectual property rights;
profanity in subject lines, messages, or signatures;
any material containing viruses, Trojan horses, worms, or any other disruptive or harmful component;
material that breaches another's privacy, i.e., containing phone numbers, addresses, or other personal information;
spam, including, but not limited to, junk mail, chain letters, unsolicited bulk email or duplicative messages, excessive cross-postings, and material that is unrelated to the forum in which it is posted;
material that contains advertisements or commercial solicitations; or
material discussing illegal activities or linking to websites that deal with such activities.
You further agree that you will not attempt or do any of the following:
interfere with or disrupt the EarBrowse Sites or our computer systems, servers, or networks;
attempt to gain unauthorized access to any part of the EarBrowse Sites, to accounts that belong to other users, or to computer systems or networks connected to the EarBrowse Sites;
engage in any systematic extraction of data or data fields, including, without limitation, email addresses, by use of any automated mechanism, such web robots, crawlers, or spiders (except in strict conformance with the Robots Exclusion Protocol) or otherwise;
collect information about others without their consent;
interfere with the use of the EarBrowse Sites by any other individual or party;
impersonate any person, or otherwise attempt to mislead others about your identity, or post material under secondary user names or other aliases;
or share any user name and/or password you have on the EarBrowse Sites with any other persons.
Without limiting any of EarBrowse's other rights or remedies, a violation of any of the above may result in the removal of any content you have transmitted or posted, revocation of any accounts you have on the EarBrowse Sites or on our affiliated websites and services, and/or a ban from creating new accounts.
Although EarBrowse cannot monitor all of the listings and content posted to the EarBrowse Sites, we reserve the right (but assume no obligation) to delete, move, condense or edit any ads, ratings, reviews, content or other postings that come to our attention that we consider unacceptable or inappropriate, whether for legal or other reasons. We retain the right to deny access to anyone who we believe has violated these terms or any other term of this Visitor Agreement. We will not, in the ordinary course of business, review the content of private electronic messages that are not addressed to us. However, we may occasionally monitor such communications as we believe is appropriate to comply with applicable laws, respond to legal process or a law enforcement request, to enforce this Visitor Agreement, or to protect the rights, property or safety of visitors to the EarBrowse Sites, our advertisers, the public, us or our affiliates. Notwithstanding the foregoing, EarBrowse takes no responsibility and assumes no liability for any content posted to the EarBrowse Sites by you or by third parties.
You agree that we may, under some circumstances and without prior notice to you, terminate your use of and access to any of the parts of the EarBrowse Sites to which we restrict access, for example, by requiring registration. Some of the reasons for such termination may include, but are not limited to, (a) a breach or violation or suspected breach or violation of this Visitor Agreement or other incorporated terms or guidelines, (b) a request by law enforcement or another government agency, (c) our decision to discontinue or change all or part of the EarBrowse Sites, (d) technical or security issues, and (e) fraudulent or illegal activities. All terminations will be made in our sole discretion and you agree that we will not be liable for any termination of your use of or access to the EarBrowse Sites or any part of the EarBrowse Sites.
DISPUTE RESOLUTION – MANDATORY ARBITRATION AND CLASS ACTION WAIVER
ARBITRATION AGREEMENT. YOU AND EARBROWSE AGREE THAT ANY CLAIMS OR DISPUTES (“Claims”) THAT ARISE OUT OF OR RELATE IN ANY WAY TO THE TERMS OF THE VISITOR AGREEMENT, THE EARBROWSE SITES, OR ANY SERVICE (INCLUDING BUT NOT LIMITED TO BILLING DISPUTES) SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION INSTEAD OF LITIGATION IN COURT. In arbitration, there is no judge and no jury. Instead, Claims are decided by an arbitrator whose authority is created by and governed by this arbitration agreement. Review of arbitration awards in the courts is very limited.
CLASS ACTION WAIVER: YOU AND EARBROWSE AGREE THAT ALL CLAIMS BETWEEN US WILL BE RESOLVED IN AN INDIVIDUAL ARBITRATION. WE BOTH AGREE THAT THERE WILL BE NO CLASS, REPRESENTATIVE, OR CONSOLIDATED ACTIONS IN ARBITRATION. In addition, neither you nor EarBrowse may participate in a class or representative action in court as a class member if the claims asserted in the arbitration would fall within the scope of this arbitration agreement if asserted directly by you or EarBrowse. You and EarBrowse both waive any right to participate in any class action involving disputes between us.
This class action waiver is an essential part of our arbitration agreement and may not be severed. If for any reason this class action waiver is found unenforceable, then the entire arbitration agreement will not apply. However, the Jury Trial Waiver section of the Visitor Agreement will remain in full force and effect.
ARBITRATOR AUTHORITY: The arbitrator's authority is governed by this arbitration agreement. You and EarBrowse agree that the arbitrator may award the same relief that a court of competent jurisdiction could award – consistent with and limited by the Visitor Agreement (including the limitations of liability set forth in Section XI), but the arbitrator may not award declaratory or injunctive relief that extends beyond you and your dealings with EarBrowse. An arbitrator may award attorneys’ fees and costs to the prevailing party if a court would be authorized to do so under the applicable law.
ARBITRATION PROCEDURES: You and EarBrowse agree that your agreement affects interstate commerce, and the Federal Arbitration Act applies. All arbitrations shall be conducted by the American Arbitration Association (“AAA”). The AAA’s rules are available on its website at www.adr.org or by calling 1-800-778-7879. If the Claim asserted in arbitration is for less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply. If the claim is for more than $75,000, then the Commercial Rules will apply. If there is a conflict between the AAA Rules and this arbitration agreement, then this arbitration agreement shall control. For claims less than $75,000, EarBrowse will pay all filing fees and costs associated with commencing an arbitration, but you will be responsible for paying your own attorneys’ fees (if you chose to use an attorney in arbitration) unless you prevail in the arbitration and the arbitrator finds that you are entitled to recover your fees under the law. The arbitration will be held in a mutually agreeable and convenient location.
SURVIVAL: This arbitration agreement survives the termination of this Visitor Agreement between you and EarBrowse.
JURY TRIAL WAIVER.
You and EarBrowse expressly and knowingly WAIVE THE RIGHT TO TRIAL BY JURY. This means that if for any reason the arbitration agreement contained in Section IX is not enforced or is found inapplicable, our claims against each other will be resolved by a judge rather than a jury.
Disclaimer of Warranties, Limitation of Liability, and Indemnification
IF YOU RELY ON THE EARBROWSE SITES OR ANY INFORMATION, PRODUCT, OR SERVICE AVAILABLE THROUGH THE EARBROWSE SITES, YOU DO SO AT YOUR OWN RISK. YOU UNDERSTAND THAT THERE MAY BE DELAYS, OMISSIONS, INTERRUPTIONS, INACCURACIES, AND/OR OTHER PROBLEMS WITH THE INFORMATION, PRODUCTS, AND SERVICES PUBLISHED ON OR PROMOTED THROUGH THE EARBROWSE SITES. THE EARBROWSE SITES ARE PROVIDED TO YOU "AS IS." EARBROWSE AND ITS AFFILIATES, AGENTS, AND LICENSORS CANNOT AND DO NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE INFORMATION AVAILABLE THROUGH THE EARBROWSE SITES (OR ANY INFORMATION, GOODS, OR SERVICES THAT ARE REFERRED TO, ADVERTISED OR PROMOTED ON, OR SOLD THROUGH THE EARBROWSE SITES). NOR DO WE OR THEY GUARANTEE THAT THE EARBROWSE SITES WILL BE ERROR FREE, OR CONTINUOUSLY AVAILABLE, OR THAT THE EARBROWSE SITES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EARBROWSE AND ITS AFFILIATES, AGENTS, AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIMS, ACTIONS, OR JUDGMENTS ARISING OUT OF OR RELATED TO ANY CONTENT POSTED TO THE EARBROWSE SITES BY YOU OR ANY THIRD PARTY.
UNDER NO CIRCUMSTANCES WILL EARBROWSE OR ITS AFFILIATES, AGENTS, OR LICENSORS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE EARBROWSE SITES OR ANY PRODUCT OR SERVICE LINKED TO OR FROM OR ADVERTISED OR PROMOTED ON THE EARBROWSE SITES, INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR OTHER DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS, AND LOSS OF DATA), EVEN IF WE ARE ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE LIABILITY OF EARBROWSE AND ITS AFFILIATES, AGENTS, AND LICENSORS, IF ANY, ARISING OUT OF ANY KIND OF LEGAL CLAIM ARISING OUT OF OR OTHERWISE RELATING TO THE EARBROWSE SITES WILL NOT EXCEED THE AMOUNT YOU PAID, IF ANY, FOR THE USE OF THE EARBROWSE SITES OUT OF WHICH SUCH LIABILITY ALLEGEDLY ARISES. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, YOU AGREE THAT WE ARE NOT RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE, TORTIOUS, OR ILLEGAL CONDUCT BY YOU OR ANY OTHER PARTY OR ANY INFRINGEMENT OF YOUR OR ANOTHER'S RIGHTS ARISING FROM OR IN CONNECTION WITH THE EARBROWSE SITES.
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 DISCLAIMERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY.
YOU AGREE TO INDEMNIFY EARBROWSE AND ITS OWNERS, SHAREHOLDERS, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, PARTNERS, AND LICENSORS, AND HOLD THEM HARMLESS FROM ANY AND ALL CLAIMS AND EXPENSES, INCLUDING ATTORNEY'S FEES, ARISING FROM OR RELATED IN ANY WAY TO YOUR USE OF THE EARBROWSE SITES OR ANY BREACH OF THIS VISITOR AGREEMENT.
To obtain access to certain services from the EarBrowse Sites (for instance, to manage your private seller listing on the EarBrowse Sites), you may be required to register on the EarBrowse Sites. As part of the registration process, you will be required to select a user name and a password. You agree that the information you supply during that registration process will be accurate and complete, and that you will not register under the name of another person. Failure to provide accurate and timely information may result in your account being closed and/or your access to content provided through your account being suspended, discontinued, or removed. We reserve the right to disallow use of a user name that we deem offensive or inappropriate. You will be responsible for preserving the confidentiality of your password and for all actions of persons accessing the EarBrowse Sites through any username/password assigned to you. You will notify EarBrowse's Customer Service Department of any known or suspected unauthorized use of your account via email.
EarBrowse reserves the right to disclose any information we collect through user accounts and registrations in accordance with our Privacy Statement.
Notice of Copyright Infringement
We want potential buyers visiting the EarBrowse Sites to feel free to share their email addresses with those listing hearing aids for sale on the EarBrowse Sites. By accessing the EarBrowse Sites, you agree not to use information concerning other users of the EarBrowse Sites, or the hearing aids they have listed or searched for on the EarBrowse Sites (including listing information, user names, email addresses, telephone numbers, and/or other information), for any purpose other than to explore the potential purchase or sale of a listed hearing aid.
This Visitor Agreement has been made in, and will be construed in accordance with the laws of, the State of Colorado, without regard to its choice of laws rules. By using the EarBrowse Sites, you consent to the exclusive jurisdiction and venue of the state and federal courts in Denver County, Colorado in all disputes arising out of or relating to this Visitor Agreement or the use of the EarBrowse Sites, but only in the event that the arbitration provision does not apply. The parties agree that any Arbitration will be conducted in Denver County, Colorado.
Please report any violations of this Visitor Agreement to our Customer Service Department.
END OF VISITOR AGREEMENT