ULTIMATE EARS, LLC WEB SITE TERMS OF USE

AGREEMENT TO TERMS OF USE

This is a legal agreement between you and Ultimate Ears, LLC (“UE”).  Please read these Terms of Use (“Terms of Use”) carefully. Except as noted with respect to Third Party Content, these Terms of Use apply to the Ultimate Ears web site located at www.ultimateears.com, and all associated sites linked to www.ultimateears.com by UE, its subsidiaries and affiliates (collectively, the “Site”). BY USING THE SITE, YOU AGREE TO THESE TERMS OF USE; IF YOU DO NOT AGREE, DO NOT USE THE SITE. Provided you agree and comply with these Terms of Use, UE grants you a, personal, limited, revocable right to access and use the Site.

OWNERSHIP OF SITE AND CONTENT

The Site is the property of UE and its affiliates and licensors. All content, including, without limitation, all text, graphics, photographs, trademarks, logos, sounds, music, artwork and the computer code comprising the same (collectively, “Content”), and the design and arrangement of such Content, contained on the Site is owned, controlled or licensed by or to UE, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.
The Site may contain “frames” or other similar structures or expressions which include content from third parties (“Third Party Content”).  If such Third Party Content is subject to terms of use by a third party, such third party terms of use shall govern the use of such Third Party Content.  Except as specifically noted in such Third Party Content, UE makes no representations or claims regarding the accuracy, use, ownership, or policies governing such Third Party Content.  Third Party Content not subject to terms of use by a third party shall, in the sole discretion of UE, be subject to restrictions on use contained in these Terms of Use.

YOUR USE OF THE SITE

Except as set forth in these Terms of Use, you may not copy, reproduce, display, transmit or distribute any part of the Site or the Content in any way without UE’s prior written consent.  You may use information on UE products and services purposely made available by UE for downloading from the Site, provided that you (1) not remove any proprietary notice language in all copies of such information, (2) use such information only for your personal, non-commercial informational purpose and do not copy or post such information on any networked computer or broadcast it in any media, (3) make no modifications to any such information (including, without limitation, dividing information on the Site in such a way that materially alters the meaning of such information when not displayed as a single compilation), and (4) not make any additional representations or warranties relating to such information.

You may not use any process or means (including circumventing security protocols or the navigational structure of the web site) to access any information not purposely made available by UE through the Site. You may not attempt to gain or actually gain unauthorized access to any portion or feature of the Site, or any other systems connected to the Site, or to any of the services offered on or through the Site, by illicit or illegitimate means (such as “hacking”). 

You may not use any means to interfere or attempt to interfere with the proper working of the Site or any transaction being conducted on the Site, or with any other person’s use of the Site.

You may not manipulate or falsify any transmittal (including data and personal information) you send to UE through the Site.

You may not use the Site or any Content for any unlawful purpose, including the solicitation of any unlawful activity, or other activity that infringes the rights of UE or others.

ADDITIONAL TERMS AND CONDITIONS

Additional terms and conditions (such as the Terms of Sale [hyperlink]) may apply to purchases of products and to specific portions or features of the Site, including contests, promotions or other similar features, all of which terms are made a part of these Terms of Use by this reference.  Failure to agree or comply with these Terms of Use and such additional terms and conditions may restrict your participation in certain services offered on or through the Site (such as the ability to make purchases on the Site or participate in promotions).

PRIVACY; SECURITY

UE’s Privacy Policy applies to your use of this Site, and its terms are made a part of these Terms of Use.  Any feedback you provide at the Site shall be deemed to be non-confidential. UE shall be free to use such information on an unrestricted basis. UE may also disclose any information we have about you (including your identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Site, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) UE’s rights or property, or the rights or property of visitors to or users of the Site, including UE’s customers.

You acknowledge and agree that data transmissions are never completely private or secure. You understand that any message or information you send to the Site may be read or intercepted by others, even if there is a special notice that a particular transmission (for example, credit card information) is encrypted.

LINKS

This Site may contain links to other independent third-party Web sites (“Linked Sites”). These Linked Sites are provided solely as a convenience to our visitors. Such Linked Sites are not under UE’s control, and UE is not responsible for and does not endorse the content of such Linked Sites, including any information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites.

DISCLAIMERS

UE DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ANY CONTENT, SERVICE OR FEATURE OF THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE SITE WILL PROVIDE SPECIFIC RESULTS. THE SITE AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. ALL INFORMATION PROVIDED ON THE SITE IS SUBJECT TO CHANGE WITHOUT NOTICE. UE CANNOT ENSURE THAT ANY FILES OR OTHER DATA YOU DOWNLOAD FROM THE SITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. UE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. UE DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SITE AND/OR ANY UE SERVICES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST UE FOR DISSATISFACTION WITH THE SITE OR ANY CONTENT IS TO STOP USING THE SITE OR ANY SUCH CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.

The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.

LIMITATION OF LIABILITY

Except where prohibited by law, in no event will UE be liable to you for any indirect, consequential, exemplary, incidental or punitive damages, including lost profits, even if UE has been advised of the possibility of such damages.

If, notwithstanding the other provisions of these Terms of Use, UE is found to be liable to you for any damage or loss which arises out of or is in any way connected with your use of the Site or any Content, UE’s liability shall in no event exceed the greater of (1) the total of any subscription or similar fees with respect to any service or feature of or on the Site paid in the six months prior to the date of the initial claim made against UE (but not including the purchase price for any UE products), or (2) US$100.00. Some jurisdictions do not allow limitations of liability, so the foregoing limitation may not apply to you.

INDEMNITY

You agree to indemnify and hold UE, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against UE by any third party due to or arising out of or in connection with your use of the Site.

VIOLATION OF THESE TERMS OF USE

You agree that any violation by you of these Terms of Use will constitute an unlawful and unfair business practice, and will cause irreparable harm to UE, for which monetary damages would be inadequate, and you consent to UE obtaining any injunctive or equitable relief that UE deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies UE may have at law or in equity.  You agree that UE will not be liable to you or to any third party for termination of your access to the Site for any reason.

GOVERNING LAW; DISPUTE RESOLUTION

You agree that all matters relating to your access to or use of the Site, including all disputes, will be governed by the laws of the United States and by the laws of the State of California without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in Orange County, California, and waive any objection to such jurisdiction or venue. Any claim under these Terms of Use must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred. No recovery may be sought or received for damages other than out-of-pocket expenses, except that the prevailing party will be entitled to costs and attorneys’ fees. In the event of any controversy or dispute between UE and you arising out of or in connection with your use of the Site, the parties shall attempt, promptly and in good faith, to resolve any such dispute. If we are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may submit such controversy or dispute to mediation. If the dispute cannot be resolved through mediation, then the parties shall be free to pursue any right or remedy available to them under applicable law.

VOID WHERE PROHIBITED

Although the Site is accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or on the Site are available to all persons or in all geographic locations, or appropriate or available for use outside the United States of America. Any offer for any feature, product or service made on the Site is void where prohibited. You are solely responsible for complying with applicable local laws.

MISCELLANEOUS

You may not use the Site or any Content in violation of any applicable laws or regulations, including without limitation United States export laws and regulations.

If any of the provisions of these Terms of Use are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms of Use, so that these Terms of Use shall remain in full force and effect. These Terms of Use constitute the entire agreement between you and UE with regard to your use of the Site, and any and all other written or oral agreements or understandings previously existing between you and UE with respect to such use are hereby superseded and cancelled. UE will not accept any counter-offers to these Terms of Use, and all such offers are hereby categorically rejected. UE’s failure to insist on or enforce strict performance of these Terms of Use shall not be construed as a waiver by UE of any provision or any right it has to enforce these Terms of Use, nor shall any course of conduct between UE and you or any other party be deemed to modify any provision of these Terms of Use. These Terms of Use shall not be interpreted or construed to confer any rights or remedies on any third parties.

UPDATES; TERMINATION OR SUSPENSION OF ACCESS

The information contained in this web site, including prices, is subject to change at any time and without notice, and UE makes no commitment to update the materials on the Site, including information that may be out of date.

UE reserves the right to, at any time and without notice, modify, suspend or terminate operation of or access to the Site, or any portion thereof, or interrupt the operation of the Site, or any portion thereof.

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