This website mylungclearpro.com ("Website") is an Internet property of Lung Clear Pro ("Lung Clear Pro", "we" or "us"). You agree to the following Website Terms of Use in their entirety, when you: (1) access or use the Website; and/or (2) purchase products or services offered on our Website ("Online Products"). The Privacy Policy ("Privacy Policy") and any and all other applicable Lung Clear Pro operating rules, policies, price schedules and other supplemental terms and conditions or documents that may be published from time to time, are expressly incorporated herein by reference (collectively, the "Agreement"). Please review the Agreement carefully. If you do not agree to the terms and conditions contained within the Agreement in its entirety, you are not authorized to use the Website in any manner or form whatsoever.
A. The Lung Clear Pro site contain copyrighted material; trademarks and other proprietary information including text, photos, video, graphics, music and sound, and the entire contents of the Lung Clear Pro Sites are copyrighted as a collective work under the United States copyright laws. Lung Clear Pro is the owner of the copyright in the entire Lung Clear Pro Sites. Lung Clear Pro owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. Each third party content provider owns the copyright in content original to it. You may not modify, publish, transmit, display, participate in the transfer or sale, create derivative works, or in any way exploit the content of the Lung Clear Pro Sites or any portion of it. Except as otherwise expressly permitted under copyright law, you may not copy, redistribute, publish, display or commercially exploit any material from the Lung Clear Pro Sites without the express permission of Lung Clear Pro and, if applicable, the copyright owner. In the event of any permitted copying, redistribution or publication of material from the Lung Clear Pro Sites, no changes in or deletion of author attribution, trademark, legend or copyright notice shall be made. You acknowledge that you do not acquire any ownership rights by downloading or copying copyrighted material.
B. You hereby grant to Lung Clear Pro and its respective affiliates worldwide, royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display any e-mail, video, graphic, data, or information sent by you to Lung Clear Pro (in whole or in part) and/or to incorporate it in other works in any form, media or technology now known or later developed.
C. You shall provide Lung Clear Pro with accurate, complete and updated information provided by you at the time of your purchase.
D. The Lung Clear Pro Sites contain links to other Web sites, resources and advertisers. Lung Clear Pro is not responsible for the availability of these external sites nor does it endorse or is it responsible for the contents, advertising, products or other materials made available on or through such external sites. Under no circumstances shall Lung Clear Pro be held responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused to a user in connection with the use of or reliance on any content, goods or services available on such external site. You should direct any concerns to such external site’s administrator or web master.
E. You agree not to take any action to interfere with the function or accessibility of the Lung Clear Pro Site or to take any action to restrict the access of others thereto.
F. The foregoing provisions of this Section 3 are for the benefit of Lung Clear Pro, its affiliates, third party content providers and licensors, and each shall have the right to assert and enforce such provisions directly on its own behalf or jointly with others.
G. Lung Clear Pro has carefully designed the Lung Clear Pro Site with the purpose of delivering certain content to users in a particular format and with a particular appearance. No third party shall have the right to utilize the content of the Lung Clear Pro Site in any way that interferes with that purpose. In particular, Lung Clear Pro prohibits any party from displaying the content on the Lung Clear Pro Sites in any format where third party advertising or other materials that Lung Clear Pro did not authorize in writing is viewed or viewable together with Lung Clear Pro’ proprietary content.
4. Disclaimer of Warranty; Limitation of Liability.
A. YOU EXPRESSLY AGREE THAT USE OF THE Lung Clear Pro SITE IS AT YOUR SOLE RISK. NEITHER Lung Clear Pro, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT THE Lung Clear Pro WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE Lung Clear Pro SITE OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE OR PRODUCTS PROVIDED THROUGH THE SITES.
B. THE Lung Clear Pro SITES ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
C. THE DISCLAIMERS OF LIABILITY CONTAINED IN THIS SECTION APPLY TO ANY DAMAGES OR INJURY CAUSED, DIRECTLY OR INDIRECTLY, BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. YOU SPECIFICALLY ACKNOWLEDGE THAT Lung Clear Pro IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
D. IN NO EVENT WILL Lung Clear Pro OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE Lung Clear Pro SITE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE Lung Clear Pro OR OUT OF THE BREACH OF ANY WARRANTY. YOU HEREBY ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION 4 SHALL APPLY TO ALL CONTENT ON THE Lung Clear Pro SITE. Lung Clear Pro’S LIABILITY TO USERS, IF ANY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID TO Lung Clear Pro.
E. Lung Clear Pro NEITHER ENDORSES NOR IS RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT ON THE Lung Clear Pro SITE, NOR FOR ANY OFFENSIVE, DEFAMATORY OR OBSCENE POSTING MADE BY. UNDER NO CIRCUMSTANCES WILL Lung Clear Pro B ELIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE CONTENT ON THE Lung Clear Pro SITE. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION, OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE Lung Clear Pro SITES. PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC INFORMATION, OPINION, ADVICE OR OTHER CONTENT, INCLUDING BUT NOT LIMITED TO FINANCIAL, HEALTH, OR LIFESTYLE INFORMATION, OPINION, ADVICE OR OTHER CONTENT.
F. Lung Clear Pro DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY PRODUCTS OR SERVICES OFFERED THROUGH THE Lung Clear Pro SITES (WITH THE SOLE EXCEPTION BEING WRITTEN WARRANTIES PROVIDED IN CONNECTION WITH Lung Clear Pro PRODUCTS OR SERVICES) AND WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN USERS AND THIRD PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. Lung Clear Pro MAKES PRODUCTS OR SERVICES AVAILABLE ON THE Lung Clear Pro SITES WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
5. Dispute Resolution
A. Governing Law. Use of this Website, any purchases made through this Website, and any controversy, claim, or dispute arising out of or relating in any way to your use of this Website or purchases through this Website and/or your Account, shall be governed by the laws of your home state of residence without respect to its choice (or conflict) of laws rules.
B. Class Action Waiver. Both you and we waive the right to bring any controversy, claim, or dispute arising out of or relating in any way to your use of this Website or purchases from the Website and/or your Account or products purchased through this Website as a class, consolidated, representative, collective, or private attorney general action regarding any such claim brought my anyone else. (This waiver, and the similar waiver specified for arbitration proceedings, are generally referred to herein as "the class action waiver.")
C. Forum Selection/Jurisdiction. Jurisdiction and venue for any dispute shall be in Las Vegas, Nevada. Each party submits to personal jurisdiction and venue in that forum for any and all purposes.
D. Agreement to Pre-Arbitration Notification. These Terms of Service provide for final, binding arbitration of all disputed claims (discussed immediately below). We and you agree, however, that it would be advantageous to discuss and hopefully resolve any disputes before arbitration proceedings or any other proceedings authorized herein are initiated. In the event of a dispute, the claimant whether you or us shall send a letter to the other side briefly summarizing the claim and the request for relief. If we are the claimant, the letter shall be sent, via email, to the email account listed in your Account. If you are the claimant, the letter shall be sent to [add address]. If the dispute is not resolved within thirty (30) days after the letter is sent, the claimant may proceed to initiate arbitration proceedings or any other proceedings authorized herein.
E. Agreement to Arbitrate Claims. Except to the limited extent noted below, use of this Website, any purchases made through this Website, and any controversy, claim or dispute arising out of or relating in any way to your use of this Website or purchases through this Website and/or your Account shall be resolved by final and binding arbitration between you and us. The arbitration shall take place in Las Vegas, Nevada in accordance with the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures of the American Arbitration Association. Unless either party or the arbitrator requests a hearing, the parties will submit their arguments and evidence to the arbitrator in writing. The arbitrator will make an award based only on the documents. This is called a Desk Arbitration. If any party makes a written request for a hearing within ten (10) days after the American Arbitration Association acknowledges receipt of a claimant’s demand for arbitration (or the arbitrator requests a hearing), the parties shall participate in a telephone hearing. In no event shall the parties be required to travel to Las Vegas, Nevada to participate in the arbitration. If you decide to commence arbitration, the provider will require to you to pay a filing fee, for which you will be reimbursed any excess amounts. If the arbitrator ultimately rules in your favor, we will also reimburse you for the base filing fee. This arbitration agreement is subject to the Federal Arbitration Act and is enforceable pursuant to its terms on a self-executing basis. Either party may seek enforcement of this provision in any court of competent jurisdiction. The arbitrator shall determine any and all challenges to the arbitrability of a claim. The arbitral award shall be judicially enforceable. Any court of competent jurisdiction may, and upon request shall, enter judgment on the arbitral award. Either party may seek confirmation (judgment on the award) and/or enforcement in any court of competent jurisdiction. Notwithstanding any provision in the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures to the contrary, and with the exception of Desk Arbitrations, the Federal Rules of Evidence shall govern the admissibility of evidence in any arbitral proceeding. Both you and we waive the right to bring any claim covered by this dispute resolution provision as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any claim covered by this dispute resolution provision brought by anyone else. Notwithstanding any provision in the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures to the contrary, the arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine the claims of different persons into one proceeding. If a proposed class, consolidated, representative, collective, or private attorney general action arbitration is initiated notwithstanding the above prohibition and it is finally determined by the arbitrator (or a court of competent jurisdiction) that the waiver specified herein is not enforceable, then the arbitration proceedings shall be bifurcated as follows and notwithstanding any provision in the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures to the contrary: 1. The issue of arbitrability shall be determined by the Arbitrator pursuant to the applicable rules and substantive law. 2. Assuming the Arbitrator concludes that the arbitration may proceed, said arbitration shall be stayed, and the issue of whether to certify any alleged or putative class for a class action (or other representative) proceeding shall be presented to and decided by a court of competent jurisdiction. The arbitrator shall not have authority or jurisdiction to decide class certification (or any similar representative action) issues. The decision to certify or not certify a class action (or to otherwise permit the action to proceed on a representative basis) shall be appealable in the judicial proceedings consistent with the rules and law governing the appeals of interlocutory decisions or class certification (or similar) rulings specifically, if appropriate. 3. Once any issues regarding class certification (and/or similar representative requirements) have been finally decided by the court, the arbitrator will have authority to decide the substantive claims on an individual or a class (or other representative) basis, as may be determined and directed by the court.
F. Appeal Rights. The arbitrator(s) shall not have the power to commit errors of law or legal reasoning, make clearly erroneous factual findings, or abuse his or her discretion, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.
MISCELLANEOUS
This Agreement and any operating rules for the Lung Clear Pro Sites established by Lung Clear Pro constitute
the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or
oral agreements between the parties with respect to such subject matter. This Agreement shall be construed in
accordance with the laws of the State of Colorado without regard to its conflict of laws rules. Any dispute arising
under or relating to this Agreement or any Lung Clear Pro Site shall be brought in state or federal courts in
Denver, Colorado, and you hereby irrevocably consent to the jurisdiction of such courts. No waiver by either party of
any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. You
also give full permission to Lung Clear Pro to charge other accounts provided on items purchased and not paid
for. The section headings used herein are for convenience only and shall not be given any legal import.
Lung Clear Pro
31 North Gould Street Ste 26047 Sheridan, WY 82801
dr.marksilva@mylungclearpro.com
833-689-1019