TERMS OF USE
These Terms and Conditions of Use (the “Terms of Use”) apply to the Xlear Inc.’s web sites located at www.xlear.com, www.sprysmile.com , and all associated sites (Collectively the “Site”).
Xlear reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms of Use, at any time. It is your responsibility to check these Terms of Use periodically for changes. Your continued use of the Site following the posting of changes will mean that you accept and agree to the changes.
You represent to Xlear that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into these Terms of Use for an entity, such as the company you work for, you represent that you have authority to bind that entity and you agree that “you” as used in these Terms of Use includes both you personally and the entity you represent.
Please read the Terms of Use agreement carefully. By accessing or using our Sites, you agree to be bound by the terms and conditions outlined in this Agreement. If you do not agree to these terms, please do not use our Sites.
Xlear’s obligations, if any, with regard to its products and services are governed solely by the agreements pursuant to which they are provided, and nothing on this Site should be construed to alter such agreements.
Xlear may make changes to any products or services offered on the Site, or to the applicable prices for any such products or services, at any time, without notice. The materials on the Site with respect to products and services may be out of date, and Xlear makes no commitment to update the materials on the Site with respect to such products and services.
Information Collection:
Xlear Inc may collect personal information, such as name, contact information, demographic information, and other data relevant to customer surveys, quality control, and offers.
Use of Information:
We use the information collected to better understand our users’ needs and provide a better service, and enhance our product offerings. We also may use information in conjunction with sending promotional emails about new products, special offers, or other information that we believe you will find interesting. We may also use your information to contact you for market research purposes. We do not resell your personal data to any third-party.
Security:
We are committed to ensuring the security of your information. We have put in place suitable physical, electronic, and managerial procedures to safeguard and secure the information collected online.
Use of Cookies:
We may use traffic log cookies to analyze web page traffic and improve our website to tailor it to customer needs. Cookies allow web applications to better serve users’ needs by gathering and remembering information about their preferences.
Content:
By posting or transmitting any User Content through our Sites, you acknowledge and agree that you have read, understand, and accept the terms of this disclosure information, and that you agree to be bound by them. You also agree that any User Content that you post or transmit through our Sites may be used by us for any purpose, including but not limited to reproduction, disclosure, transmission, publication, broadcasting, and posting. We reserve the right to monitor User Content and to remove any User Content that we believe violates these terms and conditions or is otherwise inappropriate for any reason.
Links to Other Websites:
Our website may contain links to other websites of interest. We are not responsible for the protection and privacy of any information provided by users while visiting such sites, and such sites are not governed by this privacy statement. You acknowledge and agree that your access and use of any such third-party websites, applications, services, and resources are at your own risk and subject to the terms and conditions of use applicable to such sites and resources.
Medical Disclaimer:
The medical information on our websites is for educational purposes only and is not a substitute for professional medical advice, diagnosis, or treatment. Always consult your healthcare provider if you have any questions or concerns about your health. We are not responsible for any harm caused by using the information on our websites.
Void Where Prohibited:
Xlear controls the Site from its American Fork, UT, USA offices. Although the Site is accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or on the Site are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. Xlear reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or service made on the Site is void where prohibited. If you choose to access the Site from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws.
Indemnity:
You agree to defend, indemnify and hold harmless Xlear, its affiliates and their respective employees, contractors, agents, officers and directors from and against any and all claims, damages, obligations, losses, liabilities, costs, debt or expenses (including without limitation attorneys’ fees) arising out of or related to any claim, suit, action or proceeding by a third party arising out of or relating to your use of the Site, breach of these Terms of Use (including any Xlear policy referenced in these Terms of Use), violation of law, or any content that you post, upload or cause to interface with the Site, or otherwise transfer, process, use or store in connection with the Site.
Disclaimers:
THE SITE AND ALL CONTENT AND OTHER ITEMS MADE AVAILABLE BY XLEAR ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. XLEAR ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (i) ERRORS, MISTAKES OR INACCURACIES OF DATA OR INFORMATION POSTED, DISPLAYED, PUBLISHED OR MADE AVAILABLE FOR DOWNLOAD OR USE ON THE SITE, (ii) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM USE OF THE SITE, (iii) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE, OR (iv) THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY NOT UNDER XLEAR’S CONTROL.
Limitation of Liability:
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (a) IN NO EVENT SHALL XLEAR, ITS AFFILIATES OR THEIR RESPECTIVE EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THE SITE; AND (b) IN NO EVENT SHALL XLEAR’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THESE TERMS OF USE EXCEED ONE HUNDRED U.S. DOLLARS. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT APPLY TO YOU.
Responsibility for End Users:
You are responsible for violations of these Terms of Use by anyone using the Site with your permission or using your account on an unauthorized basis. Your use of the Site to assist another person in an activity that would violate these Terms of Use if performed by you is a violation of these Terms of Use. These Terms of Use applies to anyone accessing or using the Site; however, each provision in these Terms of Use shall be interpreted to include, and apply to, any action directly or indirectly taken, authorized, facilitated, promoted, encouraged or permitted by a user of the Site, even if such person did not themselves violate the provision.
Digital Millennium Copyright Act:
Xlear respects the rights of copyright holders and abides by the federal Digital Millennium Copyright Act and similar regulations in other jurisdictions by responding to written notifications of alleged infringement by copyright holders. To provide a notification of alleged copyright infringement, please follow the procedures set forth in our Copyright Infringement Notice and Takedown Policy.
Notice for California Residents:
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: Xlear does not currently charge any fees for access and use of the Site. If you have a question or complaint regarding the Site, please contact Xlear by writing to: sales@xlear.com California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N-112, Sacramento, CA 95834, or by telephone at (916) 445–1254 or (800) 952–5210.
Violation of These Terms of Use:
Xlear may disclose any information we have about you (including your identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Site, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) Xlear’s rights or property, or the rights or property of visitors to or users of the Site, including Xlear’s customers. XIear reserves the right at all times to disclose any information that XIear deems necessary to comply with any applicable law, regulation, legal process or governmental request. XIear also may disclose your information when Xlear determines that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes.
You acknowledge and agree that Xlear may preserve any transmittal or communication by you with XIear through the Site or any service offered on or through the Site, and may also disclose such data if required to do so by law or XIear determines that such preservation or disclosure is reasonably necessary to (1) comply with legal process, (2) enforce these Terms of Use, (3) respond to claims that any such data violates the rights of others, or (4) protect the rights, property or personal safety of XIear, its employees, users of or visitors to the Site, and the public.
You agree that XIear may, in its sole discretion and without prior notice, terminate your access to the Site and/or block your future access to the Site if we determine that you have violated these Terms of Use or other agreements or guidelines which may be associated with your use of the Site. You also agree that any violation by you of these Terms of Use will constitute an unlawful and unfair business practice, and will cause irreparable harm to XIear, for which monetary damages would be inadequate, and you consent to XIear obtaining any injunctive or equitable relief that XIear deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies XIear may have at law or in equity.
You agree that XIear may, in its sole discretion and without prior notice, terminate your access to the Site, for cause, which includes (but is not limited to) (1) requests by law enforcement or other government agencies, (2) a request by you (self-initiated account deletions), (3) discontinuance or material modification of the Site or any service offered on or through the Site, or (4) unexpected technical issues or problems.
If XIear does take any legal action against you as a result of your violation of these Terms of Use, XIear will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to XIear. You agree that XIear will not be liable to you or to any third party for termination of your access to the Site as a result of any violation of these Terms of Use.
Electronic Communications
When you visit the Site or send emails to XIear, you are communicating with XIear electronically; and you consent to receive communications from XIear electronically. XIear will communicate with you by email or by posting notices on the Site. You agree that all agreements, notices, disclosures and other communications that XIear provides to you electronically satisfy any legal requirement that such communications be in writing.
Governing Law
You agree that all matters relating to your access to or use of the Site, including all disputes, will be governed by the laws of the United States and by the laws of the State of Utah without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in Salt Lake City, UT and waive any objection to such jurisdiction or venue.
Miscellaneous
These Terms of Use constitute the complete and exclusive statement of the agreement between Xlear and you (the Parties) and supersede all proposals, oral or written, and all other communications between the Parties relating to the subject matter of these Terms of Use. In the event any information posted on the Site from time to time conflicts with any provision of these Terms of Use, the applicable provision of these Terms of Use shall control. Any terms and conditions of any other instrument issued by you in connection with these Terms of Use which are in addition to, inconsistent with or different from these Terms of Use shall be of no force or effect. These Terms of Use do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Xlear. You may not assign, transfer or sublicense all or any of your rights or obligations under these Terms of Use without Xlear’s express prior written consent. Xlear may assign, transfer or sublicense all or any of Xlear’s rights or obligations under these Terms of Use without restriction. The failure of XIear to exercise or enforce any condition, term or provision of these Terms of Use will not operate as a waiver of such condition, term or provision. Any waiver by XIear of any condition, term or provision of these Terms of Use shall not be construed as a waiver of any other condition, term or provision. If any provision of these Terms of Use is held invalid or unenforceable, the remainder of these Terms of Use shall continue in full force and effect. You agree that a printed version of these Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Xlear will not be responsible for failures to fulfill any obligations due to causes beyond its control. Non-English translations of these Terms of Use are provided for convenience only. In the event of any ambiguity or conflict between translations, the English version is authoritative and controls.
Contacting Us:
If you need help or have any questions about Xlear, our Sites, our products, or an order, please click here for information on how to contact our customer service representatives, who will be happy to assist you.
