PLEASE READ: THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 12). PLEASE READ THIS CAREFULLY. EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 12 BELOW, OR WHERE PROHIBITED BY LAW, BY PURCHASING A DEVICE OR USING THE ADC SERVICES YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND SONOVA RELATING TO ANY DEVICES AND ADC SERVICES WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
All terms and conditions contained in any prior oral or written communication that are different from or in addition to the terms and conditions contained herein are hereby superseded by these Terms.
1. Device Sales
Sonova offers the All-Day Clear hearing aids and related accessories (individually, a “Device” and collectively, the “Devices”) for sale on the ADC Website. Sonova accepts orders for the Devices that it may offer through the ADC Website. Unfortunately, availability of the Devices cannot be guaranteed. Please note that the Devices and other information provided on the ADC Website or the ADC Services is subject to corrections and changes without notice. Advertising depictions, graphics and diagrams are for illustrative purposes only and may not accurately reflect actual product or component availability. Colors, styles and other variants depicted are for illustration only and are subject to change. Errors will be corrected where discovered, and we reserve the right to revoke any stated offer and to correct any errors, inaccuracies or omissions.
2. Device Pricing
You must pay the full price for purchased Devices when you place the order. PRICES LISTED DO NOT INCLUDE SALES TAX, SHIPPING COSTS OR PACKAGING COSTS, UNLESS EXPRESSLY STATED OTHERWISE. All other fees and expenses, including shipping costs and sales tax (as further set forth in Section 3 below), will be calculated on the checkout page before you are asked to confirm the purchase. Certain installment payment plans are offered by Sonova on the ADC Website, and such installment plans will have their own terms and conditions applicable to such repayment plans. These other terms and conditions are agreed upon by you when the order is placed.
For purchases where sales or transaction tax is applicable, you will see the tax calculated on the checkout page before you are asked to confirm the purchase. Tax shown at checkout is an estimate and the actual tax collected may differ once we process the order. We use commercially reasonable efforts to calculate and remit the correct amount of tax required on each taxable purchase, but we do not guarantee the accuracy of the amount of the tax represented as owed. Minor errors may occur owing to the inability to accurately track multiple taxing districts, state and local “tax holidays,” and timing of rate changes or the application of certain taxes to categories of items we sell. As a result of any error, we may overcollect or undercollect your tax. In consideration of collecting and remitting taxes required on your purchases, you hereby waive your right to claim that the tax collected on any purchase is incorrect in any respect, and you agree to hold us, our officers, directors, employees, agents and representatives, harmless from and against any claim, action, demand, loss, suit, or damages (including attorneys' fees) made or incurred as a result of our error in calculating the taxes you owe for your purchases.
4. Your Personal and Payment Information
When you provide any information to us for any reason, such as use of the ADC Website or Devices or the ADC Services, you agree to only provide true, accurate, current, and complete information. By providing any credit card or other payment card information to us, you represent that (a) such payment information is true, correct and complete, (b) you are duly authorized to use such credit card for the purchase, (c) charges incurred by you will be honored by your credit card company, and (d) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the ADC Website at the time of your order. In the case of e-mail, you must provide an accurate e-mail address that is uniquely registered to you. You are responsible for promptly updating your information with any changes, especially to keep your billing information current. You agree that your placement of an electronic order on our websites is sufficient to satisfy any applicable Statute of Frauds, and no further writing is required.
5. Cancellation; Shipping and Delivery
We reserve the right to cancel an order placed by you at any time and for any lawful reason prior to our delivery of the Devices and receipt of payment in full from you; provided, however, that we will refund any fees that you paid for the Devices if we cancel. We may send an acknowledgment of receipt of your order to the email address you provide and/or proof of purchase information through the ADC Website or to your email address after your payment has been processed. Orders may not be canceled once an order is placed.
Orders are fulfilled as quickly as possible given current stock availability. If an item is out of stock, you will be informed immediately and can choose to wait until the item is back in stock, order from certain clinics that are authorized dealers of ADC, or receive a refund of your purchase price. Delivery dates cannot be guaranteed, and Sonova shall not be responsible for any delays in shipping or delivery.
Sonova shall choose the common carrier for shipment to you. All costs for shipment are reflected in your price at checkout on the ADC Website. All risk of loss for the safe and timely delivery of the Devices is transferred to the common carrier once in their possession. All Devices ordered will be delivered to the shipping address you provide. Risk of loss is transferred to you immediately upon delivery.
If you are not completely satisfied, the Devices may be returned for a refund within 45 days from the delivery date. To be eligible for return, the Devices should be returned in good condition and proper working order in its original shipping box along with all contents, including the charging case and plug. In order to make a return, log your return on the ADC Website. Upon notification of the return, Sonova will give you a return authorization and a pre-paid label emailed to you for shipping your Devices via FedEx. You will not be responsible for the cost or method of shipment to Sonova. If the item returned to Sonova is damaged in any way, and Sonova determines, in its sole discretion, that such damage happened after shipment of the Devices from Sonova and prior to return delivery to its facility, no refund or reimbursement will be given. Your refund, minus the shipping and handling costs and the expedited shipping fee, if applicable, will be issued via a credit to the account used for payment.
7. Safety Warnings
You should carefully read all instructions for use and safety warnings to ensure you understand how to safely use the Devices.
8. Limited Warranty
The Devices are warranted for the initial purchaser only, for one (1) year from the date of purchase, or two (2) years from the date of purchase if you purchase the In-Clinic Care Package that includes the extended warranty, in each case with proof of purchase. Sonova reserves the right not to service the Devices after the applicable warranty period. The limited manufacturer’s warranty covers defects in material and workmanship for the devices, which includes their external and internal components, charging case, cord and plug within the limited warranty period. Damage from improper handling or care, exposure to chemicals, immersion in water or undue stress is not covered by the limited warranty described in this section or any other Device warranty. Damage caused by third parties or non-authorized service centers is excluded from this limited warranty. Sonova currently offers repair services (at prices based on Sonova’s current price list) on Devices up to three (3) years after the original delivery date of the applicable Device. Sonova reserves the right to modify or discontinue offering any such services, after expiration of the warranty period, in the future. A Device will not be serviced by Sonova, for any reason, if it is over three (3) years from the date of initial purchase. During the applicable limited warranty period, the Devices will be free from manufacturing defects during normal use. Any tampering with the Devices, including unauthorized repair of the Devices, or submerging the Devices in water, will not be deemed normal use and will void this limited warranty.
In case a Device malfunctions within the warranty period, please fill out a warranty claim on the ADC Website, and Sonova will then determine, in its sole discretion, whether to repair or replace the Device.
THIS LIMITED WARRANTY IS THE EXCLUSIVE WARRANTY GIVEN BY SONOVA WITH RESPECT TO THE DEVICES, IS ONLY FOR THE BENEFIT OF THE ORIGINAL PURCHASER, AND SUPERSEDES ANY PRIOR, CONTRARY OR ADDITIONAL REPRESENTATIONS. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY STATUTORY WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED EXCEPT TO THE EXTENT SUCH DISCLAIMER IS PROHIBITED BY LAW. IF A DISCLAIMER OF A WARRANTY IS PROHIBITED BY LAW, SUCH WARRANTY IS LIMITED TO THE DURATION OF THE WARRANTY PERIODS SET FORTH ABOVE. THIS EXCLUSION APPLIES EVEN IF THIS WARRANTY FAILS OF ITS ESSENTIAL PURPOSES AND REGARDLESS OF WHETHER DAMAGES ARE SOUGHT FOR BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR STRICT LIABILITY IN TORT OR UNDER ANY OTHER LEGAL THEORY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS, WHICH VARY FROM STATE TO STATE.
You agree to indemnify, defend, and hold harmless Sonova and its directors, officers, employees, agents, licensors, suppliers and any third party information providers, from and against all claims, damages, losses and costs, including attorneys’ fees, that arise from or relate to:
· your activities on the ADC Website;
· any content submitted by or on behalf of you; and
· your violation (including negligent or wrongful conduct) of these Terms.
10. Limitation of Liability
To the fullest extent permitted by law, Sonova shall not be liable for any indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to damages for loss of profits, economic or pure economic losses, goodwill, use, data, service interruption, computer damage, system failure, or other intangible losses, even if a limited remedy set forth herein is found to have failed its essential purpose; and Sonova’s total liability to you for all claims, in the aggregate, will not exceed the amount actually paid by you to Sonova for the Devices purchased by you over the 12 months preceding the date your first claim(s) arose. In no event, shall Sonova be responsible for personal injury, death, or property damage. Notice of any claims concerning the Devices must be made in writing and furnished by you to Sonova promptly upon discovery and in no event later than 60 days after the end of the applicable limited warranty. In no event may any action or proceeding concerning the products be filed more than one year after delivery of the products claimed to be defective or unsuitable or, in the case of other claims concerning these terms and conditions, more than one year after such claim arose. If you fail to give Sonova notice as required by this provision within the specified period, you will thereafter be barred from asserting the claim for which notice was required. If you live in a jurisdiction that does not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation does not apply to you. To the extent that one or any aspect of Sonova’s limitations set out above does not apply, all remaining aspects survive. The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between Sonova and you.
You agree that Sonova may share your name, contact information, and description of Devices purchased or feedback or information provided to Sonova (through the ADC Website or on a phone call with Sonova personnel) with health care professionals or any service providers with whom Sonova contracts to enable such professionals to provide follow-up health care items and/or services, or otherwise as necessary to provide the services you have requested.
12. DISPUTE RESOLUTION: ARBITRATION REQUIREMENT, CLASS ACTION WAIVER, & NO JURY TRIALS – IMPORTANT – PLEASE READ AS THIS AFFECTS YOUR LEGAL RIGHTS.
(a) Dispute Notice. In the event you have a dispute with Sonova, you must first send to Sonova a notice of the dispute so that Sonova may attempt to resolve it. The notice shall include a written statement that sets forth your name, address and contact information, the facts giving rise to the dispute, and the relief you request (the “Dispute Notice”). The Dispute Notice to Sonova must be addressed to: Sonova at 750 N. Commons Drive, Suite 200, Aurora, IL 60504, Attention: Legal Department. If Sonova and you do not reach an agreement to resolve the dispute within sixty (60) days after Sonova receives the dispute notice, you or Sonova may commence an arbitration pursuant to Subsection 12(b) (or, in the event you have properly opted out of the arbitration agreement in Subsection 12(b) as set forth below, other proceeding).
(b) Binding Arbitration; No Right to Court or Jury. Any dispute, controversy, or claim arising out of or related to these Terms, or breach thereof, or the Devices, whether the claim arises in contract, tort, or under statute, shall be EXCLUSIVELY SUBMITTED TO AND RESOLVED BY BINDING INDIVIDUAL ARBITRATION. All disputes concerning the arbitrability of a dispute, controversy, or claim (including disputes about the scope, applicability, enforceability, revocability or validity of this arbitration provision) shall be decided by the arbitrator. Arbitration shall be administered exclusively by the National Arbitration and Mediation, LLC (“NAM”) in accordance with NAM's operative Comprehensive Dispute Resolution Rules and Procedures, including NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures, (the "NAM Rules") in effect at the time any demand for arbitration is filed with NAM, as modified by this Dispute Resolution Section 12. For a copy of the NAM Rules and fee structure, please visit https://www.namadr.com/resources/rules-fees-forms or contact NAM at NAM's National Processing Center at 990 Stewart Avenue, 1st Floor, Garden City, NY 11530 or email address firstname.lastname@example.org.
NAM shall appoint a single neutral and independent arbitrator to hear the dispute. To the extent NAM allows the parties to participate in the selection process of the arbitrator, you and Sonova shall have equal rights of such participation. Each party may be represented at the arbitration by a lawyer of its choosing and each party shall bear their own attorneys’ fees. In the event you file an arbitration demand totaling less than $10,000 and it is not found to be part of a Mass Filing as defined in the NAM Rules, Sonova will either advance or reimburse you for the initial filing fee charged by NAM. The arbitration shall occur at a NAM location that is reasonably convenient for you, although it may be conducted virtually (video or telephonic) either in the arbitrator’s discretion or upon agreement of the parties. The arbitrator may only award a remedy or relief that would be available in a court of law or equity, subject to the waiver in Section 12(c). The arbitrator shall render a written, reasoned decision. The arbitrator's decision shall be final and binding and may be enforced by any state or federal court that has jurisdiction; provided, however, that the arbitrator shall not have authority to make errors of law and any arbitration award may be challenged if the arbitrator does so. You and Sonova agree that the Federal Arbitration Act shall govern this agreement to arbitrate. Any arbitration decision, regardless of whether it is confirmed by a court, is not res judicata or collateral estoppel (i.e., “does not resolve issues”) as to any other dispute.
If NAM is unable or unwilling to perform its duties under this Section 12(b), the parties shall mutually agree on an alternative administrator that will replace NAM and assume NAM's role consistent with this Agreement. If the parties are unable to agree, they will petition a court of competent jurisdiction to appoint an administrator that will assume NAM's duties under this Agreement. Any arbitral award determination shall be final and binding on the parties. BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL DISPUTES, CONTROVERIES, AND CLAIMS, subject only to the four exceptions provided in the following paragraph.
This arbitration agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, with only the following exceptions: you and Sonova agree that “dispute, controversy or claim” as referenced in the first sentence of this Subsection shall not include any claim or cause of action by you or by Sonova for (i) trade secret misappropriation, (ii) patent infringement, (iii) copyright infringement or misuse, and (iv) trademark infringement or dilution. Notwithstanding anything else in these Terms, you agree that a court, not the arbitrator, may decide if a claim falls within one of these four exceptions.
You may elect to exclude yourself from this arbitration requirement in this Subsection 12(b) by sending a written letter (“Opt-Out Letter”) to Sonova at 750 N. Commons Drive, Suite 200, Aurora, IL 60504, Attention: Legal Department, within thirty (30) days of the earlier of your first use of the ADC Website or first purchase of a Device. The Opt-Out Letter must specify: (i) your name; (ii) your mailing address; (iii) the devices purchased; (iv) the date of purchase; and (v) your request to be excluded from the arbitration requirement. In the event that you opt-out consistent with the procedure set forth above, all other terms shall continue to apply.
(c) Class Action Waiver. To the fullest extent allowable by law, you and Sonova both agree to waive any right to bring or participate in any class, collective, consolidated, representative, or private attorney general action against the other, including without limitation any Mass Filing as defined under the NAM Rules (including NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures). This means, among other things, you cannot bring claims against Sonova as a class representative, class member, or a private attorney general in a lawsuit or arbitration.
(d) Jury Waiver. If for any reason the arbitration agreement in this Section 12 is found to be unenforceable under Subsection 12(d), you and Sonova expressly and knowingly WAIVE THE RIGHT TO TRIAL BY JURY. This means that a judge, and not a jury, will decide disputes between you and Sonova if, for any reason, this arbitration agreement is not enforced.
(e) Non-Severable. The provisions of this Section 12 are mutually dependent and non-severable. If any part of this Section 12 is determined to be unenforceable for any reason, then the entire Section 12, except for the class action waiver in Subsection 12(c) and the jury waiver in Subsection 12(d), shall be unenforceable.
With the exception of any of the provisions in Section 12 above, if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
14. Governing Law
These Terms shall be governed by the laws of the State of Illinois, United States of America, without regard to principles of conflicts of law, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens, with respect to venue and jurisdiction. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply.
Headings are for convenience only and shall not be used to construe these Terms.
No failure or delay by Sonova in exercising any right hereunder will waive any further exercise of that right. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Sonova. Sonova’s rights and remedies hereunder are cumulative and not exclusive.
17. Entire Agreement; Amendment