The Earphone Guy maintains this web site and all the information, communications, software, scripting, photos, text, video, graphics, sounds, images and other materials and services found on the Site (collectively "Content"), for the use of its customers, employees and members of the general public but only for the lawful purposes described below.
ACCEPTANCE OF CONTRACT TERMS; JURISDICTION
If you do not agree to these terms, do not use the Site.
The Site is controlled and operated in whole or in part by The Earphone Guy from its offices within the United States. BY ACCESSING THE SITE YOU AGREE THAT THE STATUTES AND LAWS OF THE UNITED STATES AND THE STATE OF CALIFORNIA, U.S.A., WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, WILL APPLY TO ALL MATTERS RELATING TO USE OF THE SITE, AND YOU AGREE THAT ANY LITIGATION SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE STATE OR FEDERAL COURTS IN CALIFORNIA, U.S.A. Those who access the Site from other locations do so at their own risk and are responsible for compliance with applicable local laws. The Earphone Guy makes no representation that the Content in the Site is appropriate or available for use in other locations, and access to it from territories where the Content is illegal is prohibited. You acknowledge that The Earphone Guy reserves the right in its sole discretion to refuse or terminate access to the Site by you at any time.
PURCHASE TERMS AND CONDITIONS
If you do not agree to these terms, do not use the Site.
ON-LINE TERMS AND CONDITIONS
If you have not entered into an Underlying Agreement with The Earphone Guy, these On-Line Terms and Conditions are the complete agreement between you and The Earphone Guy with respect to the Products you purchase or license. The Earphone Guy reserves the right to modify, change or revise these On-Line Terms and Conditions, in whole or in part, at any time and without any notice, by revising this posting. By using the Site, you agree to be bound by any such revisions and you agree to periodically visit this page to determine the then current On-Line Terms and Conditions to which you are bound.
Order and Acceptance: You agree that your order is an offer to purchase Product(s) at the prices shown on the Site and in accordance with the terms and conditions stated below, which shall become a binding contract when accepted by The Earphone Guy. You agree that these terms and conditions may not be altered, supplemented, or amended by the use of any other document(s) and any such attempt will be null and void. The Earphone Guy shall indicate its acceptance of your order by shipping the selected Product(s) to you. The banking, negotiation or other use of any payment shall not constitute an acceptance by The Earphone Guy.
Title and Risk of Loss: Title to the Products and risk of loss passes from The Earphone Guy to you upon shipment from The Earphone Guy's facility.
Shipping Costs: Separate charges for shipping and handling will be added to the price of the Products ordered unless you have made other prior arrangements with The Earphone Guy. Shipping and delivery dates are best estimates only.
Payment: You shall make payment of the purchase, and applicable shipping costs prior to the products shipping unless your account has been specifically approved for thirty (30) day terms. If Products are shipped in partial shipments, separate invoices will be sent and corresponding partial payments are required. The Earphone Guy shall retain, and you hereby grant The Earphone Guy, a security interest and right of possession in the Products until you make full payment. Service charges at the maximum rate permitted by applicable law may be invoiced on accounts more than thirty (30) days past due and shall be due and payable upon receipt of invoice.
Taxes: The purchase and license prices do not include any amount for federal, state, or local excise, sales, lease, service, rental, use, property, occupation, or other taxes, all of which (other than federal, state, and local taxes based on The Earphone Guy's income or net worth) will be paid by you except as exempt by law. The Earphone Guy will charge the California State Tax rate of 8.25%. If your city or county has a higher tax rate than that of 8.25%, you will be responsible to remit said taxes to The California Board of Equalization.
Disclaimer of License: Nothwithstanding your purchase, The Earphone Guy does not grant to you either directly or by implication, estoppel or otherwise, any license or right under any patents, patent applications,copyrights, trademarks, trade secrets or other intellectual property of The Earphone Guy.
Limitation of Liability: The Earphone Guy'S TOTAL LIABILITY ARISING FROM THE SALE, USE, INSTALLATION, TESTING AND OPERATION OF PURCHASED OR LICENSED PRODUCTS, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WILL BE LIMITED TO THE PRICE OF PRODUCTS FOR WHICH LOSSES OR DAMAGES ARE CLAIMED. IN NO EVENT WILL The Earphone Guy BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES EVEN IF The Earphone Guy WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Licenses and Authorizations: You are solely responsible for obtaining any licenses or other authorizations required by the Federal Communications Commission ("FCC") or any other federal, state, or local governmental agency. You are solely responsible for complying with applicable FCC rules and regulations and the applicable rules and regulations of any other federal, state, or local governmental agency. Neither The Earphone Guy nor any of its employees is your agent in FCC or other governmental matters.
Force Majeure: In addition to other limitations on liability set forth herein, The Earphone Guy shall not be liable for any delay or failure to perform due to any cause beyond its control. Causes include, but are not limited to, strikes, acts of God, your acts, interruptions of transportation or inability to obtain necessary labor, materials or facilities, default of any supplier, or delays in FCC frequency authorization or license grant. In the event The Earphone Guy is unable to wholly or partially perform because of any cause beyond its control, The Earphone Guy may terminate the Agreement without any liability to you.
Confidential Information: You will not disclose any material or information identified as The Earphone Guy Confidential Proprietary to third parties without The Earphone Guy's prior written permission, unless The Earphone Guy makes such material or information public or disclosure is required by law. If you are required by law to disclose such material or information, you will notify The Earphone Guy prior to such disclosure.
Representations and Commitments: The Earphone Guy is not making, and you are not relying upon any representations or commitments except for those expressly set forth in these On-Line Terms and Conditions, including but not limited to representations or commitments related to price guarantees, the origin or content of purchased Products; prevailing wage requirements; equal employment opportunity, non-discrimination, drug-free workplaces or workforces, and other personnel matters; the conduct of business in any particular nation or jurisdiction; compliance with environmental laws and regulations; insurance coverage of any nature; compliance with the Federal Acquisition Regulations; compliance with specific state or local laws, regulations or ordinances; use of small, minority, women, disabled, veteran, and disabled veteran-owned businesses; or indemnification of the buyer for any reason.
Assignments: The Earphone Guy may assign any of its rights or subcontract any of its obligations under these On-Line Terms and Conditions without prior notice to you and without your consent.
Limited Applicability: These On-Line Terms and Conditions apply only to the purchase and license of The Earphone Guy Products and do not involve or apply to the performance by The Earphone Guy of any services such as installation, maintenance, customer product design, product engineering or project management.
No Right to Audit or Inspect: The Earphone Guy's books and records and facilities will not be subject to audit or inspection at any time or for any reason whatsoever.
Causes of Action: Any action relating to these On-Line Terms and Conditions must be brought within one year of the accrual of the cause of action.
Waiver: One waiver of a right or remedy of either party does not constitute a permanent waiver or a waiver of any other right or remedy of that party.
Severability: If any provision of these On-Line Terms and Conditions is held to be invalid or unenforceable, that provision will be severed and the remainder of these On-Line Terms and Conditions will remain in full force and effect as if the invalid or unenforceable provision were not part of these terms. Headings: Paragraph headings will not be construed as a limitation of the scope of any particular paragraph or section of these terms.
Governing Law: These On-Line Terms and Conditions will be governed by and interpreted in accordance with the laws of the State of California.
Entire Agreement: These On-Line Terms and Conditions constitute the entire agreement of the parties regarding purchase and license of The Earphone Guy Products and supersedes all previous agreements and understandings, whether written or oral, relating to purchase and license of the Products.
SUBMISSIONS OF INFORMATION
Although The Earphone Guy provides certain encryption in an effort to protect the electronic transmission of credit card numbers ("financial information") that you submit to The Earphone Guy through the Site, The Earphone Guy does not guarantee the security of any information transmitted to or from the Site. You agree to assume the security risk for any information you provide using the Site.
Other than the financial information, do not send any confidential or proprietary information to The Earphone Guy through the Site. Except for the financial information, any information you do send to The Earphone Guy through the Site will be deemed NOT to be confidential ("non-confidential information"). For any non-confidential information you do send, you hereby grant The Earphone Guy an unrestricted, royalty-free, irrevocable license to use, reproduce, display, perform, modify, transmit and distribute the non-confidential information, and agree that The Earphone Guy is free to use any ideas, concepts, know-how or techniques that you send The Earphone Guy for any purpose.
You are prohibited from posting or transmitting to or from the Site any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material, or any other material that could give rise to any civil or criminal liability under the law.
RESTRICTIONS ON USE OF CONTENT
You acknowledge, having been advised by The Earphone Guy, that the Content is protected in the U.S. and internationally by a variety of laws, including but not limited to, copyright laws and treaty provisions, trademark laws and other proprietary rights laws (collectively "Rights"). In addition to The Earphone Guy's Rights in individual elements of the Content, The Earphone Guy owns a copyright in the selection, coordination and arrangement of the Content.
LINKS TO THIRD PARTY WEB SITES
The Earphone Guy makes no representations whatsoever about any other web site which you may access through the Site. When you access a non-The Earphone Guy web site, please understand that it is independent from The Earphone Guy, and that The Earphone Guy has no control over the content on that web site. In addition, a link to a non-The Earphone Guy web site does not mean that The Earphone Guy endorses or accepts any responsibility for the content, or the use, of such web site. It is up to you to take precautions to ensure that whatever you select for your use is free of such items as viruses, worms, trojan horses and other items of a destructive nature. The Earphone Guy makes no representation or warranty as to any third party products.
DISCLAIMER OF WARRANTY
The Earphone Guy DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, VALIDITY, ACCURACY, OR RELIABILITY OF, OR THE RESULTS OF THE USE OF, OR OTHERWISE RESPECTING, THE CONTENT OF THE SITE OR ANY OTHER WEB SITES LINKED TO OR FROM THE SITE. THE CONTENT OF THE SITE IS PROVIDED "AS IS" WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT POSSIBLE PURSUANT TO APPLICABLE LAW, The Earphone Guy DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR OTHER VIOLATION OF RIGHTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR LIMITATION ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY.
LIMITATION OF LIABILITY
The Earphone Guy WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THE USE OR THE INABILITY TO USE THE SITE, ITS CONTENT OR LINKS, INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
TRADEMARKS AND SERVICE MARKS
The Earphone Guy, and marks shown with an ® are owned by The Earphone Guy, or their respective owners, and registered with the U.S. Patent and Trademark Office. Other trademarks, such as product and service names, found on The Earphone Guy web sites are owned by The Earphone Guy or by third parties. No The Earphone Guy trademark or service mark may be used as a hyper-link without prior written permission. Your use of The Earphone Guy's trademarks in advertising and the promotion of The Earphone Guy's products and services requires an accompanying statement that the trademarks belong to The Earphone Guy.