MEMBER TERMS AND CONDITIONS
You (the “Member”) are entering into a legally binding agreement. These Member Terms and Conditions (this “Agreement”) set out the terms on which Legacy Guitars (“LEGACYGUITARS”) offers you access to and use of Legacy Guitars’ websites, applications, tools, and services (collectively “Membership Services”).
Please be advised that this Agreement affects your legal rights and contains provisions that govern how claims between you and Legacy Guitars have against each other are resolved. You should read this Agreement in its entirety before accepting it. If you object to anything in this Agreement, or otherwise do not understand or agree to be bound by this Agreement, do not use the Membership Services. If you use the Membership Services in any way, including by placing a bid through Legacy Guitars’ website, you agree to and are bound by this Agreement. You are encouraged to retain a copy of this Agreement for future reference.
Legacy Guitars may modify, add to, suspend or delete this Agreement, in whole or in part, at Legacy Guitarss’ sole discretion, at any time, with such modifications, additions or deletions being immediately effective upon their posting to the Website (as defined below). Legacy Guitars will provide you with notice of such changes, and it is your responsibility to review any changes to this Agreement. If you object to any of the changes to this Agreement, or otherwise do not understand or agree to any of the changes to this Agreement, do not use the Membership Services. By continuing to use the Membership Services following notice of any changes to this Agreement, you agree to and are bound by this Agreement as changed.
II. General Terms and Acknowledgements
For purposes of this Agreement, references to “you,” “your,” and “Member” shall mean a registered user of the Legacy Guitars website. References to the “Website” shall mean the website located at https://www.legacyguitars.com and any related website provided by Legacy Guitars unless otherwise specified. “Member Account” or “Account” shall mean the account you create through the Website and through which you may receive information from Legacy Guitars and participate in the Membership Services and other features of the Website, such as bid in online actions and arrange for item shipment. “Seller” shall mean a
Member who uses the Website to sell an item. “Buyer” shall mean a Member who uses the Website to purchase a item.
B. Modifications and Changes to the Website, Membership Services
Legacy Guitars may modify, add to, suspend, or delete any aspect of the Website or any Membership Services offered by Legacy Guitars thereby, in whole or in part, at Legacy Guitars’ sole discretion at any time, with such modifications, additions or deletions being immediately effective. Such modifications, additions or deletions may include but are not limited to functionality and services offered, other content offered, hours of availability, and equipment needed for access or use.
C. Prohibited Use of the Website, Member Account
In addition to other prohibitions as set forth in this Agreement, you are prohibited from using the Website and/or any Member Account: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate Legacy Guitars’ intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Website or materials and products found thereon, or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Website, other websites, or the Internet. Legacy Guitars reserves the right to terminate your use of the Website for violating any of the prohibited uses or for any other reason at Legacy Guitars’ sole and exclusive decision.
D. Accuracy, Completeness and Timeliness of Information
Legacy Guitars is not responsible if information made available on the Website is not accurate, complete or current. You acknowledge that the Website is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. You acknowledge and agree that no advice or information, whether oral or written, obtained from Legacy Guitars, or through the Website, shall create any warranty notexpressly stated in this Agreement. You further acknowledge that any material downloaded or otherwise obtained through the use of the Website is done at your own risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material.
E. Right of Refusal, Limitation, and Discontinuation
Legacy Guitars reserves the right to refuse to provide any access to the Website and/or Membership Services and/or a Member Account to anyone for any reason at any time at Legacy Guitars’ sole discretion without recourse to you.
III. Your Member Account
A. Registration Required
In order to participate in the Membership Services, such as bidding on instruments or amplifiers, establishing a bidding limit, and benefiting from exclusive discounts and services, users are required to register as Members. Access of the Membership Services without registration shall be strictly prohibited.
B. Membership Eligibility
Membership is limited to those persons who are eighteen (18) years of age or older and have the capacity to enter into a legally binding contract and who reside in the countries that are not currently under U.S. trade embargo restrictions. You must also hold a valid driver’s license, state-issued ID or passport and shall be required to provide proof of the same upon registration. In addition to the foregoing, state-specific registration requirements and applicable laws, regulations and restrictions may further limit Member registration and purchasing eligibility.
C. Registration Process and Procedures
information on the Website so that it remains current, complete and accurate. During the registration process, you may be required to choose a password. You acknowledge and agree that Legacy Guitars may rely on this password to identify you. You are responsible for all use of your Account, regardless of whether you authorized such access or use, and for ensuring that all use of your Account complies fully with the provisions of this Agreement.
D. Account Activity
Members are responsible for all Account activity, including, without limitation, all bids submitted under the Member’s username and password through the Website. A Member’s Account may not be transferred or assigned to any person or entity. In the event a Member’s Account or username and password are used without authorization, you agree to immediately notify Legacy Guitars of any such unauthorized activity. Members shall be responsible for all Account activity and charges incurred prior to the receipt of written notice by Legacy Guitars of such unauthorized activity.
E. Revocation of Membership
Legacy Guitars reserves the right to suspend or irrevocably revoke the Membership of a Member for any reason, at Legacy Guitars’ sole and absolute discretion. Membership may be suspended for any of the following reasons, including but not limited to: improper or unprofessional conduct on the Website or on any affiliate website, through any electronic or non-electronic format; non-payment of contracted agreements; or any other reason whatsoever as Legacy Guitars deems applicable. Legacy Guitars shall not be liable in any manner whatsoever for said revocation or suspension.
F. Marketing and Promotional Materials
Members agree and acknowledge that by registering for an Account they have affirmatively requested to receive marketing and promotional materials via mail, email and facsimile from Legacy Guitars and Legacy Guitars’ third-party affiliates. To unsubscribe to any promotional materials sent to you via email, simply follow the unsubscribe information provided at the bottom of each communication.
G. Comments on Auction Pages
Members have the option to place comments on the auction page of any instrument listed on the Website. Comments may be directed to the Seller, to other Members bidding on the instrument or to other Members commenting on the instrument. You agree that any comments you make on an auction page will be appropriate and professional and will not
contain any content that is indecent, of a derogatory nature, or otherwise inappropriate. Legacy Guitars reserves the right to remove any comments or to revoke the Membership of any Member who violates this provision, all at Legacy Guitars’ sole and absolute discretion.
Member agrees and acknowledges that Legacy Guitars will have the right to periodically send electronic or printed correspondence to such Member, including text messages. Such correspondence may be in reference to changes in policies, promotions available to Members, or other material related to the Member’s Account or access thereof to the Website. Notwithstanding any current or prior election to opt in or opt out of receiving telemarketing calls or SMS messages (including text messages) from us, our agents, representatives, affiliates, or anyone calling on our behalf, you expressly consent to be contacted by us, our agents, representatives, affiliates, or anyone calling on our behalf for any and all purposes arising out of or relating to your Member Account, at any telephone number, or physical or electronic address you provide or at which you may be reached. You agree we may contact you in any way, including SMS messages (including text messages), calls using prerecorded messages or artificial voice, and calls and messages delivered using auto telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, he or she may also leave a message on your answering machine, voice mail, or send a message via text. You certify, warrant and represent that the telephone numbers that you have provided to us are your contact numbers. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us. You agree to promptly alert us whenever you stop using a particular telephone number. Your cellular or mobile telephone provider will charge you according to the type of plan you carry. You also agree that we may contact you by e-mail, using any email address you have provided to us or that you provide to us in the future. We may listen to and/or record phone calls between you and our representatives without notice to you as permitted by applicable law, for purposes of quality monitoring purposes.
IV. Auctions, Bidding and Sales
After Seller creates an Account and provides all the necessary information in regard to the item to be sold, Seller will receive an email notifying Seller that the item has been approved for sale. Seller shall then choose the preferred type of auction for selling the guitar or amplifier. If Seller chooses a Reserve Auction, Seller will suggest a reserve. Legacy Guitars will
review Seller’s suggested reserve and, together with Seller, will establish the Reserve Price, which shall be the minimum price at which the Seller’s guitar or amplifier may be sold. Before the auction takes place, Seller will be contacted by an auction specialist, who will verify all information with the Seller and arrange with Seller for photos of the guitar or amplifier to be displayed on the Website. After all information is verified and all necessary details are listed on the Website, the auction will begin once Legacy Guitars determined at its discretion and will last for a period of at least seven to ten (7-10) days but may be longer or shorter as determined by Legacy Guitars.
B. Reserve Auction
If Seller chooses a Reserve Auction, Seller will suggest a Reserve Price, which must be approved by Legacy Guitars. Upon Legacy Guitars and Seller agreeing upon the guitar’s Reserve Price, the auction will begin at a date and time to be determined by Legacy Guitars and will last for a period of at least seven to ten (7-10) days but may be longer or shorter as determined by Legacy Guitars. Legacy Guitars shall notify Seller once the Auction begins. If the guitar or amplifier fails to meet the reserve price, all contractual obligations between Seller and Legacy Guitars will end. Seller may reduce or waive the Reserve during the auction by notifying the Company of such change via email or, if available, the Company’s web-based notification tools made available to Seller up to fifteen (15) minutes before the end of the auction.
C. No Reserve Auction
In a No Reserve Auction, Seller does not provide a Reserve Price. Instead, Seller’s guitar or amplifier will sell for the highest bid amount, regardless of the exact amount of such bid. If no bids are received for the item during the initial auction period, all contractual obligations between the Seller and Legacy Guitars will end.
When a prospective Buyer desires to make a bid on a guitar or amplifier, the prospective Buyer will be prompted to enter his or her credit card information to pay the applicable bidding fees (as hereinafter explained in Section VI.B). After entering such information, the prospective Buyer will be able to make a bid. Bids are to be placed at the bottom of the auction page, where the prospective Buyer can see how many bids have been made for the guitar or amplifier and the amount of the current highest bid. Once a bid has been made, an email notification confirming the bid will be sent to the prospective Buyer. After a bid has been submitted, it cannot be retracted, deleted or canceled for any reason whatsoever;
therefore, Members should exercise caution when placing bids. In the event that a prospective Buyer’s bid is exceeded by another bid, an email notification will be sent to the prospective Buyer notifying him or her that the bid has been exceeded. The prospective Buyer will then be able to make a separate bid.
E. Disputes Regarding Bids
Should a dispute arise regarding a bid, Legacy Guitars is the exclusive deciding authority with sole and absolute discretion in resolving disputes. Members agree to indemnify, defend and hold Legacy Guitars harmless from any and all liability arising out of decisions made in resolving disputes regarding bids.
F. Sale Cancellation
Legacy Guitars reserves the right to cancel or reverse a sale transaction in the event of fraud, material misrepresentation, or patent defect in the description of the guitar or amplifier or bidding information, as determined by Legacy Guitars in Legacy Guitars’ sole discretion. Legacy Guitars will not be liable to any Member as a result of any guitar or amplifier withdrawal, sale cancellation or postponement.
G. Post-Bid Damage, Discrepancy
If, prior to the guitar or amplifier being retrieved by Buyer, it is determined that parts have been changed or replaced, or that additional damage has occurred since the time the Buyer submitted his/her bid , the Buyer will have the option to purchase the guitar or amplifier at the original price or cancel the sale.
H. Risk of Loss, Assumption of the Risk
Buyer takes full responsibility and assumes all risk of loss for all guitars or amplifiers purchased from the time Legacy Guitars accepts the Buyer’s bid. From and after acceptance of the Buyer’s bid, Buyer acknowledges that Legacy Guitars is not responsible for damage to
or loss of the guitar or amplifier or parts thereof and shall not be responsible for any claim of damage, regardless of whether Buyer, or any person on Buyer’s behalf such as Buyer’s agent, employee or representative, picks up the guitar or amplifier from Seller.
V. Compliance with Laws, Rules, and Regulations
Members shall comply with all applicable laws, statutes, ordinances and regulations regarding their use of the Membership Services.
Buyer agrees to comply, and to cause its agents and representatives to comply, with all applicable laws and regulations when retrieving a purchased guitar or amplifier from Seller. If the item is shipped, the seller shall pack guitars and amplifiers in appropriate shipping containers and provide appropriate packing material so that no damage shall occur. Legacy Guitars shall in no event be responsible or liable for any damage occurring as a result of unsafe or improper packing of a guitar or amplifier and the Buyer agrees to indemnify, defend, and hold Legacy Guitars harmless from any and all claims, damages, losses, liabilities, obligations, costs and expenses (including attorneys’ fees) arising from or related to any failure of the Buyer or the Buyer’s agent or representative to properly pack an item for shipping.
VI. Delivery of Guitar or Amplifier to Buyer
A. Pickup by Buyer
If available from the Seller, purchased items may be picked up by the Buyer directly from the applicable Seller only after full and complete payment for the guitar or amplifier, including payment of any and all applicable fees.
B. Shipment of Purchased Guitar or Amplifier
Should a Buyer desire to have the purchased guitar or amplifier shipped to Buyer, Buyer may arrange with Seller for such shipment. However, under no circumstances will Legacy Guitars make arrangements for such shipment or be responsible for Seller’s refusal to make such arrangements.
C. Non-Delivery by Seller
In the event that Seller fails to make a purchased guitar or amplifier available for delivery to Buyer within 48 hours of full payment of the guitar or amplifier, Legacy Guitars will return to
Buyer an amount equal to the Buyer’s Fee (as hereinafter defined) if paid in full less any administrative charge incurred by Legacy Guitars in processing the refund. Seller will not be entitled to the return of any fee paid by Seller on account of that sale and will be liable to Legacy Guitars for any amount refunded to Buyer and any fee or administrative charge incurred by Legacy Guitars to refund the Buyer’s Fee to Buyer.
D. Shipping Disclaimer
Members acknowledge and agree that it is the Buyer’s responsibility to either pick up or arrange for the delivery of a purchased guitar or amplifier. In the event that Buyer elects for delivery of a purchased guitar or amplifier, Buyer shall be solely responsible for arranging and paying for the shipment of the guitar or amplifier. Legacy Guitars shall not be liable for any guitar or amplifier damage, guitar or amplifier or part theft, or shipment delays.
VII. Fees and Payments
A. Seller’s Fees
For a Reserve Auction, Seller will be charged an auction fee of $45.00 USD at the time Seller submits the guitar or amplifier information for approval. For a Vehicle No Reserve Auction, Seller will not be charged a fee. If the Seller’s item is rejected by guitar or amplifier and not able to be listed for sale on the Website, for whatever reason, guitar or amplifier will refund any auction fee already paid by Seller with respect to the rejected guitar or amplifier. These fees are subject to change at any time. All amounts listed are in U.S. dollars.
By listing a guitar or amplifier auction (solicited or unsolicited) the Seller automatically agrees to all “General Terms and Condition” outlined in this document as well as the “Seller’s Agreement”.
B. Buyer’s Fees
For auctions, when a prospective Buyer enters a bid, a temporary hold in the amount of five percent (5%) of the prospective Buyer’s bid (the “Hold”) will be placed on the prospective Buyer’s credit card. In the event the prospective Buyer’s bid is exceeded by another bid and the prospective Buyer does not win the particular auction, the Hold will expire and the prospective Buyer will not be charged any fee. In the event that the prospective Buyer is the winning bidder for a particular auction, the Hold will be released, and full buyer’s premium of 5% of the winning bid with a minimum of $100.00 USD and a maximum of $3,000.00 USD will be charged to the credit card by Legacy Guitars as the Buyer’s Fee.
C. Payments for Guitars or Amplifiers
After a prospective Buyer receives notice that the prospective Buyer has entered the winning bid for an Item, the Buyer must contact the Seller directly to arrange for the payment of the guitar or amplifier. Buyer should use the link provided for contacting Seller to arrange for such payment. All payments for guitars or amplifiers bought through Legacy Guitars must be made in full to Seller within seven (7) business days of the sale date.
D. Non-Payment by Buyer
If a Buyer fails to issue payment for a purchased guitar or amplifier within the allotted time, the Buyer will be considered to have forfeited all of its rights in the guitar or amplifier. In the event that Seller fails to sell the guitar or amplifier for a sale price equal to or greater than the sale price agreed-upon by the forfeiting Buyer, the forfeiting Buyer will be liable to Seller for the difference between the sale prices.
E. Payment Information and Taxes
Buyer agrees that Buyer is solely responsible for paying any applicable sales tax for a guitar or amplifier purchased through the Website. Buyer agrees that Legacy Guitars is not responsible for notifying Buyer of any particular sales tax and that Legacy Guitars shall not be liable for any penalty incurred by Buyer for failure to pay any applicable sales tax or any other applicable local, state, or federal charge.
All payments made by you to Legacy Guitars shall be facilitated through Stripe, Inc., Legacy Guitar’s third party payment processing service. Stripe’s terms of service can be found at https://stripe.com/us/terms. All information that you provide in connection with a monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
F. Authorization to Collect, Unpaid Fees
You hereby authorize Legacy Guitars to debit any and all outstanding fees from the account linked to your original form of payment without seeking your prior consent or approval or otherwise notifying you of Legacy Guitars’ intent to so debit said fees. All Members shall abide by the following statement: “I hereby authorize Legacy Guitars to initiate debit/credit entries from my bank deposit account or credit/debit card.”
In the event of unpaid fees due and owed by a Buyer, Buyer agrees and acknowledges that Seller shall have no duty or other obligation to release to Buyer any guitar or amplifier until all fees are paid in full to Legacy Guitars to the complete satisfaction of Legacy Guitars.
G. Fee Dispute
Unless otherwise specified herein, no fees shall be refundable to you for any reason whatsoever due to the non-cancelable and irrevocable nature of the transactions provided for herein.
Should you object to the payment of any fee, you agree to write to Legacy Guitars, using the contact information on the Website, so that Legacy Guitars may determine the validity of your claim. Should Legacy Guitars deny refunding you the disputed fee, you agree to submit the claim to binding arbitration pursuant to the provisions of Section VIII.B, infra. You agree to indemnify Legacy Guitars for any financial harm and/or any losses that arise from or relate to any fee dispute of any kind, including the payment of attorney’s fees and costs.
VIII. Disclaimers, Limitations of Liability
A. Guitar or Amplifier Condition and History Disclaimer ALL GUITARS AND AMPLIFIERS ARE SOLD “AS IS WHERE IS”
All guitars and amplifiers offered for sale through Legacy Guitars are sold “AS IS WHERE IS,” WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED. The term “Guitars” shall mean all items posted for sale on the Website. Legacy Guitars expressly disclaims the accuracy or completeness of any and all information provided to Members regarding guitars and amplifiers, whether provided in written, verbal or digital image form (“Guitar Information”). Guitar or Amplifier Information provided by Legacy Guitars is for convenience only. Members shall not rely on Guitar or Amplifier Information in deciding whether or how much to bid on a guitar or amplifier purchased through Legacy Guitars. Guitar or Amplifier Information includes but is not limited to: year, make, model, condition, damage amount, damage type,
serial number, or repair history. Legacy Guitars does not make and expressly disclaims any and all representations, warranties and guarantees regarding guitars or amplifiers sold through the Website.
All Members agree that guitars and amplifiers sold through Legacy Guitars are sold “AS IS”.
B. Disclosure of Member Information
Each Member expressly agrees that Legacy Guitars may, if and to the extent necessary to comply with applicable law, disclose information regarding Legacy Guitars’ Members and regarding transactions conducted by Members through Legacy Guitars if requested to do so in any judicial or administrative proceeding or by any governmental agency or regulatory authority (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand, or otherwise).
E. Disclaimer and Release of Liability
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL LEGACY GUITARS BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS THAT RESULT FROM OR ARE RELATED TO THE SALE, DISTRIBUTION, USE OF OR INABILITY TO USE ANY GUITAR OR AMPLIFIER, EVEN IF LEGACY GUITARS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Members irrevocably and unconditionally waive and release their rights (if any) to recover from Legacy Guitars, its directors, officers, employees, representatives, agents, parents, subsidiaries, partners, affiliates and vendors any and all damages, losses, liabilities, costs, expenses or claims therefore, whether direct or indirect, known or unknown, or foreseen or unforeseen, which may arise from or be related to the sale, distribution, use of or inability to use any guitar or amplifier purchased through Legacy Guitars.
Members agree to indemnify, defend and hold Legacy Guitars harmless from any and all damages, losses, liabilities, costs or expenses (including attorney’s fees) arising from claims made by a Member related to the sale, distribution, use of or inability to use any guitar or amplifier purchased through Legacy Guitars.
Members hereby unconditionally release Legacy Guitars from any and all liability whatsoever for any losses or damages (whether direct or indirect, known or unknown, foreseen or unforeseen, and including attorneys’ fees) arising out of or in any way related to any of the following:
Your failure or refusal to strictly comply with this Agreement and any and all of Legacy Guitars’ rules and policies;
Buyer’s failure or refusal to notify Legacy Guitars of any problem with or condition of any guitar or amplifier before it is removed from Seller’s possession;
Your failure or refusal to keep your Account login information confidential;
The termination or suspension of your Account;
Your cancelation of your Account;
Legacy Guitars’ decision to charge your credit card to pay any unpaid fees;
The postponement, cancelation or withdrawal of any guitar or amplifier auction on the Website;
Your failure or refusal to know the type and amount of applicable fees and charges (including auction fees and other applicable fees and charges related to your use of the Membership Services);
Your failure or refusal to pay any amount due within the time period specified (including any vehicle purchase price, auction fees, and other applicable fees and charges related to your use of the Membership Services);
Buyer’s failure or refusal to remove any guitar or amplifier from Seller’s possession within the time period specified;
Seller’s failure or refusal to deliver a guitar or amplifier purchased by Buyer to Buyer’s possession within the time period specified;
Seller’s refusal to release any guitar or amplifier to Buyer due to any unpaid fees or Buyer’s violation of this Agreement;
Any damage, removal or replacement of items, or title discrepancy occurring with respect to a purchased vehicle after the Buyer has purchased the guitar or amplifier, but before Buyer has retrieved the guitar or amplifier;
Seller’s refusal to release or transfer possession or ownership of any guitar or amplifier to anyone other than Buyer;
Legacy Guitars’ refusal to issue you a refund for any reason;
Legacy Guitars’ declaration that any guitar or amplifier is “abandoned” due to Buyer’s failure or refusal to remove the guitar or amplifier from Seller’s possession within the time specified;
Seller’s election to relist a purchased guitar or amplifier after Buyer fails to make payment for the item within the time specified;
Any damage to or loss of a purchased guitar or amplifier due to acts of theft or vandalism, weather, acts of God, or any other reason that occurs after the end of an auction but before the guitar or amplifier is removed from the Seller’s possession;
Buyer’s failure or refusal to comply with this Agreement or any applicable law or regulation when removing a guitar or amplifier from Seller’s possession;
Buyer’s guitar or amplifier after it is purchased through the Website;
Your use of any service provided by any third party (including any of Legacy Guitars’ recommended service providers); and
Legacy Guitars’ denial or rejection of any request or demand by you that does not comply with this Agreement.
You acknowledge and agree that under this general release, you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the scope of this general release to include only those claims that you may know or suspect to exist at the time you agree to this release.
Additionally, you hereby agree to pay all reasonable costs and expenses (including court fees, attorney fees, travel expenses, and other related costs and expenses) incurred by Legacy Guitars in connection with Legacy Guitars’ efforts to obtain a stay or dismissal of any Claim (as defined in Section VIII.B) pursuant to the general release under this section.
F. General Indemnification of Legacy Guitars
For the purposes of this Section, “Loss” means any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including interest which may be imposed in connection therewith), expenses of investigation, reasonable fees, costs and disbursements of attorneys, counsel, and other experts (at trial and on any appeal), and cost to Legacy Guitars of any funds expended by reason of the occurrence of any Third Party Claim (as defined in this Section) or incurred in imposition thereof or in enforcing the provisions of this Agreement.
To the maximum extent permitted by law, you hereby agree to indemnify Legacy Guitars and its affiliates, sublicensees, members, directors, officers, employees, representatives, agents, and any person claiming by or through any of them, and their respective successors, heirs, and assigns against any and all Losses arising out of, resulting from, or related to any claim brought by a third-party related to any item listed in Section VII.E.
G. Limitation of Damages
Members agree that, to the extent permitted by applicable law, Legacy Guitars shall not under any circumstances have any liability whatsoever to a Member or any third-party for any damages or losses of any kind (known or unknown, foreseen or unforeseen, direct or indirect) arising out of or in any way related to any disclaimer provided in this Agreement or on the Website.
Members agree that, to the extent permitted by applicable law, Legacy Guitars shall not under any circumstances have any liability whatsoever to a Member or any third-party for any (a) indirect, incidental, special, consequential, or punitive damages, (b) loss of use, data, opportunity, goodwill, reputation, profit, or revenue, or (c) costs or expenses (including attorneys’ fees) for any Claim (as defined in Section VIII.B) not amounting to a willful or intentional wrong.
Regardless of the previous paragraphs, Members agree that, to the extent permitted by applicable law, if Legacy Guitars is found liable in any Claim (as defined in Section VIII.B), Legacy Guitars’ total liability to the Member or to any third-party shall not exceed the amount of any fees (excluding the purchase price of any guitar or amplifier, or any other fees charged by any third-party) paid by the Member to Legacy Guitars related to the transaction or guitar or amplifier giving rise to the liability. If no such fees were paid by the Member to Legacy Guitars, Legacy Guitars’ total liability to the Member or any third-party for any Claim (as defined in Section VIII.B) shall not exceed $500.00 USD.
14. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
A. Governing Law
You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either
specific or general, in jurisdictions other than California. These Terms shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Santa Cruz County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Santa Cruz County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from Company. For any dispute with Company, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that Company has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Santa Cruz County, California, unless you and Company agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees pursuant to and in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses; provided, that if you are an individual, you may apply for and successfully obtain a fee waiver from JAMS; and you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be
deemed as preventing Company from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
C. Attorney Fees
Except as specifically provided under this Agreement, the AAA rules, or by applicable law, the parties acknowledge and agree that (a) each party shall bear its own costs, expenses, and attorneys’ fees incurred in connection with any Claim, and (b) any right to an award of costs and expenses (including attorneys’ fees) under Section VII.E or elsewhere in this Agreement is limited to the specific circumstances set forth under such section and is not intended to provide any party with a general right to an award of costs and expenses (including attorneys’ fees), even if such party is the “prevailing party” in connection with any Claim.
If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms and provisions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term or provision.
This constitutes the entire agreement between the parties concerning this Agreement and the subject matter contained herein. No further warranties, representations, or other promises, oral or written, have been made or are made part hereof.