Terms & Conditions
Welcome to the Earshots website, operated by Earshots Limited. (“Earshots”) and located at www.earshots.com.au and www.earshots.com (collectively, the "Site"). The following terms and conditions (“Terms”) govern your use of the Site.
In order to access certain Services, you may be asked to register and create an account. As part of the registration process, you may be asked to click to agree to these Terms, and may then be asked to select or submit a user name and password. You may also be required to provide us with certain information about yourself including some types of personal information, including your legal name, phone number, address, email address, gender, and age. You are responsible for ensuring that your password and account login are kept secret, safe, and secure at all times. Earshots will not be held responsible or liable for any misuse of your account in the event that a third party has access to and uses your password and account login in any way.
When placing an order through the Site, you will be required to provide other personal information, such as shipping address, billing address, and payment details. Additional information may be collected by Earshots or its third party providers at this time for security and anti-fraud purposes. You represent that the personal information you provide to us via the Site is true, valid, complete and up-to-date in all respects, and you confirm that you are the person referred to in the shipping (unless the item is a gift) and billing information provided. Should any of the information you provide on the Site change, please login to your account and update such information directly on the Site.
You agree that we may store, use, disclose and otherwise handle any personal information that you provide to us via the Site in accordance with
3. General Restrictions on Use
You agree to use the Site and the Services only for purposes that are permitted by these Terms and in compliance with all applicable laws, regulations, and generally accepted practices or guidelines in the relevant jurisdictions. You may only use the Site and Services for your non-commercial, non-exclusive, non-assignable, non-transferable and limited personal use, and for no other purposes.
You will not (and will not attempt to):
- Access any of the Services by any means other than through the interface that is provided by Earshots;
- Gain unauthorized access to Earshots computer system or engage in any activity that interferes with the performance of, or impairs the functionality or security of the Site, the Services, Earshots networks and computer systems;
- Access any of the Site or the Services through any automated means or with any automated features or devices (including use of scripts or web crawlers);
- Access or collect any personal information, including any names, email addresses or other such information for any purpose, including, without limitation, commercial purposes;
- Reproduce, duplicate, copy, sell, trade, or resell any aspect of the Site or the Services for any purpose; and
- Reproduce, duplicate, copy, sell, trade or resell any products or services bearing any trademark, service mark, trade name, logo or service mark owned by Earshots in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
4. Site Content
As between you and Earshots, Earshots owns or licenses all information and materials, including logos, designs, titles, phrases, product names, images, illustrations, icons, photographs, and the copyrights, trademarks, service marks, trade dress, and other intellectual property rights associated therewith, in or made available through the Site (“Site Content”), as well as the selection, coordination, arrangement, and organization and enhancement of the Site Content. Site Content may be protected pursuant to copyright, trademark, patent, and other applicable laws. You agree not to remove or alter any copyright notice or any other proprietary notice on any Site Content. Use or misuse of trademarks comprised in the Site Content is expressly prohibited and may violate trademark law. Under no circumstances will you have any rights of any kind in or to the Site Content, other than the right to use the Site Content in accordance with these Terms.
Certain features of the Site may allow you to contribute feedback and other information to the Site for access, use, viewing, and commentary by other users of the Site (collectively, “Comments”). By posting Comments, you represent that you have the full legal right to provide the Comments and that use of the Comments by Earshots on the Site, and all other persons and entities, will not: (a) infringe any intellectual property rights of any person or entity or any rights of publicity, personality, or privacy of any person or entity, including as a result of your failure to obtain consent to post personal identifying or otherwise private information about a person; (b) violate any law, statute, ordinance, regulation, or agreement; or (c) constitute disclosure of any confidential information owned by any third party; or (d) be misleading or deceptive. Upon your submission of Comments or other material or information to Earshots, you grant Earshots a worldwide, perpetual, irrevocable, transferable, license to access, use, distribute, reproduce, display, modify, create derivative works based upon, and sublicense the Comments, all without any compensation to you whatsoever. For avoidance of doubt, Earshots shall be under no obligation: (1) to maintain any Comments in confidence; (2) to compensate you in any way for your Comments; or (3) to respond to any Comments.
5. Errors, Inaccuracies, and Omissions
Occasionally there may be information on the Site that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, promotions, offers, and availability. We reserve the right to correct any errors, inaccuracies or omissions and to change or update information or cancel orders if any information on the Site is inaccurate at any time without prior notice (including after you have submitted your order). We cannot and do not review all communications, products, or services made available on or through the Site, but, although not obligated to, may review, verify, make changes to or remove any Comments, Site Content, or the Site, including information submitted in connection with the Site Content or other features at any time, with or without notice in our sole discretion.
6. Disclaimers and Warranties
Earshots reserves the right to change the assortment of items offered and to limit the quantity of items that may be purchased from time to time and at any time, without prior notice. We also reserve the right to alter the terms or duration of any special offers or sale promotion. Earshots is not liable in case of stock outage or unavailability of products. We have made every effort to display as accurately as possible the colors of our products that appear at the Site, but we cannot guarantee that your computer monitor's display of any color will be accurate.
Certain Earshots Services may come with statutory warranties and guarantees that cannot be limited, excluded or modified by law. Earshots does not seek to limit, exclude or modify any such warranties or guarantees.
Subject to section 7, Earshots expressly disclaims, to the fullest extent permitted by law, any express or implied warranties: (i) that the Site, Services, Site Content, goods, advice, information or links provided on the Site will meet your requirements; (ii) that the Services will be uninterrupted, timely, secure or free from error; (iii) that defects in the operation or functionality of any software provided to you as part of the Services will be corrected; (iv) regarding the Site Content, goods, services, advice, information or links provided by any third parties or users; (v) that the Site, Site Content, goods, services, advice, or information displayed on the Site will meet your requirements; and (vi) that the Site will be error-free or that any errors will be corrected. No advice or information, whether oral or written, obtained by you from the Site shall create any warranty not expressly stated in these Terms.
You understand that the technical processing and transmission of any Site Content and Comments may be transferred unencrypted and involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices. Please be advised that we do not guarantee that any information sent to or from our Site will be secure during transmission, nor can we guarantee the confidentiality of any communication or material transmitted to us via the Site or the Internet, including, for example, personal information such as your name or address. Earshots assumes no responsibility for: (a) any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any communication; and (b) any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the Site, including any injury or damage to you or to any person’s computer related to or resulting from use of the Services or the Site.
To the extent permitted by law, no conditions, warranties or other terms (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description) apply to the Site, Site Content and/or Services except to the extent that they are expressly set out in these Terms.
7. Limitation of Liability
IF EARSHOTS BREACHES ANY WARRANTY OR GUARANTEE THAT CANNOT BE EXCLUDED AT LAW IN RESPECT OF EARSHOTS GOODS OR SERVICES THAT ARE ORDINARILY ACQUIRED FOR PERSONAL, DOMESTIC OR HOUSEHOLD PURPOSES, YOU MAY BE ENTITLED TO:
- A REPLACEMENT OR REFUND FOR A MAJOR FAILURE AND COMPENSATION FOR ANY OTHER REASONABLY FORSEEABLE LOSS OR DAMAGE;
- HAVE THE GOODS REPAIRED OR REPLACED IF THE GOODS FAIL TO BE OF ACCEPTABLE QUALITY AND THE FAILURE DOES NOT AMOUNT TO A MAJOR FAILURE.
IF EARSHOTS BREACHES ANY WARRANTY OR GUARANTEE THAT CANNOT BE EXCLUDED AT LAW IN REPSECT OF EARSHOTS GOODS OR SERVICES WHICH ARE NOT ORDINARILY ACQUIRED FOR PERSONAL, DOMESTIC OR HOUSEHOLD PURPOSES, TO THE FULLEST EXTENT PERMITTED BY LAW, EARSHOTS’ LIABILITY IS LIMITED (AT EARSHOTS’ OPTION) TO:
- IN THE CASE OF GOODS, (I) REPAIR OR REPLACEMENT OF THE GOODS; (II) SUPPLY OF EQUIVALENT GOODS; (II) PAYMENT OF THE COST OF THE REPAIR OR REPLACEMENT OF THE GOODS OR SUPPLY OF EQUIVALENT GOODS; AND
- IN THE CASE OF SERVICES, (I) RESUPPLY OF THE SERVICES; OR (II) PAYMENT OF THE COST OF THE RESUPPLY OF THE SERVICES.
SUBJECT TO THE FOREGOING, TO THE FULLEST EXTENT PERMITTED BY LAW, EARSHOTS’ LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER BASIS IN LAW OR EQUITY:
- FOR LOSS OF PROFIT, LOSS OF REVENUE, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA AND ANY LOSS THAT DOES NOT ARISE NATURALLY OR ACCORDING TO THE USUAL COURSE OF THINGS FROM A BREACH, ACT OR OMISSION RELATING TO THESE TERMS (“INDIRECT LOSS”) IS EXCLUDED; AND
- FOR ALL OTHER LOSSES OTHER THAN INDIRECT LOSS, IS LIMITED TO THE GREATER OF: (I) $10; AND (II) THE PRICE YOU PAID FOR THE GOOD OR SERVICE THAT IS THE SUBJECT OF THE CLAIM.
Without limiting the foregoing, you understand and acknowledge that Earshots’ shall not be liable to you for any loss or damage which may be incurred by you as a result of: (i) any reliance placed by you on the completeness, accuracy or existence of any advertising, or as a result of any relationship or transaction between you and any advertiser or sponsor whose advertising appears on the Site or the Services; (ii) any changes that Earshots may make to the Site or Services, or for any permanent or temporary cessation in the provision of the Services (or any features within the Services); (iii) the deletion of, corruption of, unauthorized access to, or failure to store, any content and other communications data maintained or transmitted by or through your use of the Site or the Services; (iv) the use of any products or services obtained on or through the Site; or (v) any other matter relating to the Site, the Services, the Site Content, or the Comments.
The limitations on Earshots’s liability to you in this Section 7 shall apply whether or not Earshots has been advised of or should have been aware of the possibility of any such losses arising.
IF YOU ARE DISSATISFIED WITH THE SITE, THE SERVICES, OR THE TERMS, YOU SHOULD DISCONTINUE USING THE SITE AND SERVICES IMMEDIATELY.
9. Links To Other Sites
10. Complaint Procedures
If you believe that any content or postings on this Site violates your intellectual property or other rights, please notify Earshots by email at firstname.lastname@example.org with a comprehensive detailed message setting forth the following information: (a) your name and the name of your company, if any; (b) your contact information, including your email address; (c) the nature and substance of your complaint, the specific rights at issue, and your basis for making the complaint, including the content or posting that is objectionable; and (d) the following statement: “The statements, representations, and assertions made in this message are true, complete, and accurate and I have the full legal authority to make each and every such statement, representation, and assertion and to make and be granted any demand made in this message.”
11. Dispute Resolution
Any dispute arising out of these Terms shall be resolved exclusively through final and binding arbitration conducted by the American Arbitration Association (the “AAA”). Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual; and an arbitrator must also follow the terms of these Terms, as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability and the scope or enforceability of this agreement to arbitrate shall be for a court of competent jurisdiction to decide. Arbitration shall take place in Auckland, New Zealand, unless Earshots elects otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the New Zealand. The arbitrator shall not be bound by rulings in prior arbitrations involving different Earshots users, but is bound by rulings in prior arbitrations involving the same Earshots user to the extent required by applicable law. The arbitrator's award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Payment of all filing, administration, and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this Agreement to Arbitrate. If the value of the relief sought is $10,000 or less, at your request, Earshots will pay all filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by Earshots should be submitted by mail to the AAA along with your demand for arbitration and Earshots will make arrangements to pay all necessary fees directly to the AAA. If the value of the relief sought is more than $10,000 and you are able to demonstrate that the costs of accessing arbitration will be prohibitive as compared to the costs of accessing a court for purposes of pursuing litigation on an individual basis, Earshots will pay as much of the filing, administration, and arbitrator fees as the arbitrator deems necessary to prevent the costs of accessing arbitration from being prohibitive. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Earshots for all fees associated with the arbitration paid by Earshots on your behalf that you otherwise would be obligated to pay under the AAA's rules. If an arbitrator or court decides that any part of this agreement to arbitrate is invalid or unenforceable, the other parts of this agreement to arbitrate shall still apply.
You can choose to reject this agreement to arbitrate by mailing us a written opt-out notice (“Opt-Out Notice”). The Opt-Out Notice must be postmarked no later than thirty days after the date you accept these Terms for the first time. You must complete the Opt-Out Notice form by providing the information called for in the form, including your name, address (including street number and address, city, state, and zip code), phone number, and the email address used to log in to the Earshots account to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the agreement to arbitrate. If you opt out of the agreement to arbitrate, all other parts of these Terms will continue to apply. Opting out of this agreement to arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.
You agree that if Earshots does not exercise or enforce any legal right or remedy which is contained in these Terms (or which Earshots has the benefit of under any applicable law), this will not be taken to be a formal waiver of Earshots rights and that those rights or remedies will still be available to Earshots. If any court of law, having the jurisdiction to decide a matter arising out of these Terms, rules that any provision of these Terms is invalid, then that provision will be removed from these Terms without affecting the rest of the Terms and the remaining provisions will continue to be valid and enforceable.
The Site is controlled and operated from within New Zealand. Without limiting anything else, Earshots makes no representation that the Site, Site Content, Comments, services, products, information or other materials available on, in, or through the Site is appropriate or available for use in other locations, and access to them from territories where they are illegal is prohibited. Those who choose to access the Site from other locations do so on their own volition and are responsible for compliance with applicable laws.