Harmonicaland Terms of Use Agreement

 

Thank you for visiting the Harmonicaland website. The Harmonicaland website and its associated services (collectively, the “Website”) are provided by Harmonicaland, LLC, and Idaho Limited Liability Compnay (“Harmonicaland”). By accessing or using the Harmonicaland Website, however accessed, or by purchasing any products through the Website, you manifest your intent and agree to be bound by this Terms of Use Agreement (“Agreement”).

 

This Agreement and the terms contained within are subject to change by Harmonicaland at any time, in its sole and absolute discretion, and without notice, but any change to these terms will not apply retroactively. You are under a duty to review the terms of this Agreement prior to using the Website. If you do not agree to the terms and conditions contained within this Agreement, you must discontinue your use of the Website immediately. Your continued use of the Website after a replacement, modification, or amendment of the terms of this Agreement will constitute your manifestation of assent to, and agreement with, any replacement, modification, or amendment herein.

 

Harmonicaland hereby incorporates its Privacy Policy as if fully restated herein. You must review Harmonicaland’s Privacy Policy to understand what personal and personally identifiable information that Harmonicaland may collect from you when you use the Website and how Harmonicaland may use that personal or personally identifiable information.

 

NOTICE OF ARBITRATION. THIS TERMS OF USE AGREEMENT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT APPLIES TO ALL CLAIMS EXCEPT FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT OR THOSE THAT CAN BE BROUGHT IN SMALL CLAIMS COURT. EXCEPT AS OTHERWISE STATED UNDER THE TERMS OF THIS AGREEMENT, AND IF YOU DO NOT OPT-OUT OF ARBITRATION AS SET FORTH BELOW, YOU AGREE THAT ANY AND ALL DISPUTES BETWEEN YOU AND Harmonicaland WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE YOUR RIGHT TO BRING OR RESOLVE ANY DISPUTE AS, OR PARTICIPATE IN, A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR ARBITRATION.

 

1.    User Eligibility. The Website is open to use to those who are age eighteen (18) or above. By using the Website, you warrant that you are age eighteen (18) or above, are of sound mind, and have the capacity to agree to and uphold the terms and conditions contained within this Agreement. If you use the Website on behalf of a business entity or other third party, you warrant that you express actual authority to act as an agent of that business entity and third party and, as a component of that agency, have the right and ability to agree to the terms of this Agreement on behalf of that third party or business entity. You further warrant that you are not prohibited from entering into this Agreement by the terms of any preexisting agreement.

 

2.    Intellectual Property Rights. The Website and its associated trademarks and content are owned and used by Harmonicaland, including, but not limited to, the Harmonicaland ™  trademark[AJ2] . Any use of the Website, its associated trademarks, or its content without the prior written approval of Harmonicaland is prohibited. The selection, arrangement, and layout of the Website is the sole and exclusive property of Harmonicaland, and any unauthorized copying, public display, public performance, distribution, or derivation, whether in whole or in part, is expressly prohibited.

 

3.    Acceptable Use Policy. When you use the Website, you agree to use it only for its customary and intended purposes and as permitted by the terms of this Agreement and any applicable law, regulation, statute, or ordinance. Additionally, you agree that you are responsible for any breach of your obligations under the terms of this Agreement and for any losses suffered by Harmonicaland for such a breach, including, but not limited to, monetary damages, costs, and attorneys’ fees. You are expressly prohibited from using the Website to violate any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international, or to violate the rights of a third party, including, but not limited to, intellectual property rights, privacy rights, rights of publicity, or other personal or proprietary rights. Additionally, you are expressly prohibited from:

 

a.    Attempting to access the Website other than through a standard web browser unless you have been permitted to do so by Harmonicaland through a separate, written agreement (this restriction does not apply to search engines that comply with Harmonicaland’s robots.txt file);

b.    Accessing or attempting to access the Website through automated means (this restriction does not apply to search engines that comply with Harmonicaland’s robots.txt file);

c.    Circumventing the technological protection measures of the Website;

d.    Posting or transmitting content intended to collect personal or personally identifiable information from users of the Website or third parties;

e.    Disrupting or otherwise interfering with the Website or its associated servers or networks;

f.     Scraping, reproducing, republishing, selling, reselling, duplicating, or trading the Website or its content;

g.    Diverting or attempting to divert customers of the Website to another website or service;

h.    Sending unsolicited or unauthorized communications to users of the Website or third parties;

i.      Transmitting content to the Website that is false, inaccurate, misleading, tortious, defamatory, vulgar, obscene, libelous, invasive, hateful, or otherwise objectionable;

j.      Reverse engineering, decompiling, translating, or disassembling the Website or its content; and

k.    Encouraging or assisting any other party to do anything in violation of the terms of this Agreement.

 

Harmonicaland reserves the right to modify, amend, or terminate the Website or its associated content at any time and without prior notice. Harmonicaland also reserves the right to refuse service or access to the Website to any person or business entity at any time and without notice.

 

4.    Ordering and Payment. Payment for all orders placed through the Website must be made at the time of ordering. You understand and agree that the prices quoted on the Website are an invitation to deal and that no contract will be formed between you and Harmonicaland until Harmonicaland accepts your invitation to deal by performance, specifically, by shipping the ordered goods. Pricing errors will not constitute a contract between you and Harmonicaland, and Harmonicaland strives to quickly correct any pricing errors on the Website when discovered.

 

All costs and fees are quoted and payable in United States Dollars and you acknowledge and agree that Harmonicaland is not responsible for any foreign transaction fees or other fees charged to you by your financial institution or by Harmonicaland’s payment processor. You agree that you will not initiate any chargebacks to Harmonicaland unless otherwise authorized by Harmonicaland in writing. You understand and agree that you will be responsible and required to pay for any costs associated with any chargebacks that you have initiated against Harmonicaland.

 

Harmonicaland accepts payment via credit card, PayPal, and money order. If you pay via PayPal or money order, your item will not be shipped until your funds clear. 

 

If you want to cancel an order, Harmonicaland will use commercially reasonable efforts to assist you in canceling your order. Please note that our goal is to ship packages out as quickly as possible and that our system is fully automated, which makes it very difficult to modify or cancel an order once it’s been confirmed. Initial shipping costs will be deducted from refunds due to cancelations including a $9.90 processing fee. Return shipping costs are the responsibility of the customer.

 

5.    Taxes. You agree that You will pay all taxes assessed by governmental bodies, whether local, state, provincial, national, or international, associated with your use of and/or purchase of goods through the Website. Harmonicaland will report as income all payments received from you to Harmonicaland to all proper taxing authorities.

 

6.    Shipping. Harmonicaland strives to handle and ship your order as fast as possible. If we do not have stock on all or part of your order, your order will be held until we can ship the full order. You have the option to pay additional shipping services to have us ship you more than one parcel and deliver the goods that are immediately available. If our store is out of stock, expect a delay of approximately one week. If the manufacturer is out of stock, Harmonicaland cannot control the length of delay.

 

Shipping costs will be added to the order at checkout. Harmonicaland ships via USPS, UPS, FedEx, or DHL. Shipping times vary depending on your location. All orders are shipped without insurance unless you purchase insurance for your order at the time of checkout. Free shipping offers do not include insurance, which must be added separately. Harmonicaland provides estimated transit time based on the info provided by carriers for the service selected. Harmonicaland is not responsible for any delay incurred or incorrect delivery.

 

7.    Returns/Exchanges. Due to health concerns related to the use of Harmonicaland’s products, Harmonicaland has a NO RETURN POLICY for all harmonicas. Accessories such as pouches, bags, and cases are returnable minus a $14.90 processing fee.

8.    Third-Party Websites. You acknowledge and agree that the Website may contain links to third-party websites or content that Harmonicaland does not own or control. You are advised to review the terms and conditions of any third-party websites or content linked to through the Website, and you agree that Harmonicaland will not be responsible for websites not under the ownership or control of Harmonicaland.

 

9.    Term and Termination. The term of this Agreement will begin upon your first accessing of the Website and will continue until the earlier of the following: (i) Harmonicaland terminates your access to the Website; or (ii) you cease using the Website. Harmonicaland reserves the right to terminate the Website or your access to the Website in its sole and absolute discretion and without prior notice.

 

10. Disclaimer of Warranties and Limitation of Liability.

 

a.    YOU ACKNOWLEDGE AND AGREE THAT THE WEBSITE IS PROVIDED ON AN “AS-IS” BASIS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, AND NON-INFRINGEMENT. WHEREVER PERMITTED BY LAW, YOU ACKNOWLEDGE THAT Harmonicaland WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CLAIMS, DAMAGES, JUDGMENTS, CHARGES, OR FEES ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, COSTS AND ATTORNEYS' FEES, DAMAGES ARISING OUT OF ERRORS OR OMISSIONS, AND DAMAGES ARISING OUT OF THE UNAVAILABILITY OF THE WEBSITE OR DOWNTIME. YOU ACKNOWLEDGE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK AND THAT Harmonicaland’S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO USE THE WEBSITE OR $500, WHICHEVER IS LESS.

 

b.    PRODUCTS PURCHASED THROUGH THE WEBSITE MAY BE COVERED BY A LIMITED MANUFACTURER’S WARRANTY THAT PROTECTS THE ORIGINAL PURCHASER ONLY AGAINST ANY MANUFACTURING DEFECTS OR ISSUES IN WORKMANSHIP AND/OR MATERIALS THAT MAY HAVE BEEN CAUSED DURING PRODUCTION. IN THE EVENT OF A MANUFACTURER’S DEFECT, Harmonicaland WILL REPAIR THE PRODUCT OR REPLACE THE ITEM WITH THE SAME OR SIMILAR ITEM AT ITS DISCRETION. THIS WARRANTY DOES NOT COVER NORMAL WEAR AND TEAR OR ACCIDENTS. ONLY ORIGINAL MATERIALS AND WORKMANSHIP ARE COVERED BY THIS WARRANTY[AJ3] .

 

c.    Harmonicaland EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY DAMAGE, INJURY, HARM, COST, EXPENSE, OR LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF PRODUCTS PURCHASED THROUGH THE WEBSITE. EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, PRODUCTS PURCHASED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS-IS” BASIS AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, NON-INFRINGEMENT, OR QUALITY. SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, YOU ARE ADVISED TO SEEK LEGAL ADVICE TO DETERMINE IF THIS EXCLUSION APPLIES TO YOU.

 

d.    Harmonicaland WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY, WHETHER IN WARRANTY, CONTRACT, STRICT LIABILITY, TORT, OR NEGLIGENCE, FOR ANY DAMAGES, CLAIMS, INJURIES, JUDGMENTS, COSTS, OR LIABILITIES OF ANY KIND ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF PRODUCTS PURCHASED THROUGH THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, DAMAGE TO PROPERTY, LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE.

 

11. Indemnification. You agree to indemnify, defend, and hold harmless Harmonicaland, its officers, shareholders, directors, employees, subsidiaries, affiliates, and representatives from any and all losses, including, but not limited to, costs and attorneys’ fees, arising out of or related to (i) your use of the Website, (ii) your purchase of products through the Website; (iii) your use or misuse of products obtained through the Website; (iv) your violation of any term or condition of this Agreement; (v) your violation of the rights of third parties, including, but not limited to, intellectual property rights or other personal or proprietary rights; and (vi) your violation of any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national, or international. Your obligation to defend Harmonicaland will not provide you with the ability to control Harmonicaland’s defense, and Harmonicaland reserves the right to control its defense, including its choice of counsel and whether to litigate or settle a claim subject to indemnification.

 

12. Choice of Law and Stipulation to Jurisdiction.

 

a.    You and Harmonicaland agree that any dispute arising out of or related to this Agreement or your use of the Website, including, but not limited to, your purchase of goods through the Website, will be governed by the laws of the State of Idaho, without regard to its conflict of laws rules. Specifically, the validity, interpretation, and performance of this Agreement will not be governed by the United Nations Convention on the International Sale of Goods. Except for claims that may be brought in small claims court, claims of intellectual property infringement, or claims for injunctive relief by either party, you and Harmonicaland agree that any dispute or controversy arising out of, in relation to, or in connection with this Agreement, your use of any products purchased through the Website, or your use of the Website including, without limitation, any and all disputes, claims (whether in tort, contract, statutory, or otherwise), or disagreements concerning the existence, breach, interpretation, application, or termination of this Agreement, will be resolved by final and binding arbitration pursuant to the Federal Arbitration Act in Vancouver, Washington or, at the option of the party seeking relief, by telephone, online, or via written submissions alone, and be administered by the American Arbitration Association (“AAA”) under the then in force Commercial Arbitration Rules by one arbitrator appointed in accordance with such rules. Such arbitration will be independent and impartial. If the parties fail to agree on the arbitrator within twenty (20) calendar days after the initiation of the arbitration hereunder, AAA will appoint the arbitrator.

 

b.    This arbitration will be conducted in the English language. The decision of the arbitrator will be final and binding on the parties and judgment on any award(s) rendered by the arbitrator may be entered in any court having jurisdiction thereof. Nothing in this section will prevent either party from seeking immediate injunctive relief from any court of competent jurisdiction, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The parties undertake to keep confidential all awards in their arbitration, together with all confidential information, all materials in the proceedings created for the purpose of the arbitration and all other documents produced by the other party in the proceedings and not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a court or other judicial authority. The arbitrator shall award all fees and expenses, including reasonable attorney’s fees, to the prevailing party. Any judgment rendered by the arbitrator may be entered in any court of competent jurisdiction.

 

c.    ANY DISPUTE RESOLUTION PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PURCHASE OR USE OF PRODUCTS FROM OR THROUGH THE WEBSITE, WHETHER IN ARBITRATION OR OTHERWISE, SHALL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, AND YOU AND Harmonicaland EXPRESSLY AGREE THAT CLASS ACTION AND REPRESENTATIVE ACTION PROCEDURES SHALL NOT BE ASSERTED IN NOR APPLY TO ANY ARBITRATION PURSUANT TO THESE TERMS.

 

d.    Any claims must be brought within one year of each applicable purchase or will otherwise be barred.

 

13. Force Majeure. Harmonicaland will not be responsible for any delay or failure in performance of the Website or its associated products arising out of any cause beyond Harmonicaland’s control, such as acts of God, war, riots, fire, terrorist attacks, pandemics, power outages, severe weather, or other accidents.

 

14. Survivability. The representations, warranties, duties, and covenants made by you under this Agreement will survive the termination of this Agreement or the Website, including, but not limited to, your duty to indemnify and defend Harmonicaland.

 

15. Interpretation. This Agreement will be deemed to have been drafted by both parties, and the terms and conditions of this Agreement will not be interpreted against its drafter.

 

16. Assignment. You are expressly prohibited from assigning your rights and duties under this Agreement. Harmonicaland reserves the right to assign its rights and duties under this Agreement, including in a sale of Harmonicaland or its Website.

 

17. Waiver and Integration. No term or condition of this Agreement or breach of this Agreement will be deemed to have been waived or consented to unless said waiver is writing and signed by the party to be charged. This Agreement is the entire agreement between the parties and supersedes all previous agreements or representations between the parties.