Terms of Membership, Rental, and Sale
These Terms of Membership, Rental, and Sale (“Terms of Sale”) and our Online Terms and Conditions, available at [ï] (the “Terms and Conditions”) govern your membership, rental, or purchase of products and services from BuyOrBorrow Music LLC, an Alabama limited liability company, including its divisions, subsidiaries and affiliates BuyOrBorrow Music LLC (the “Company”, “us”, “our” or “we”) through our website(s) (collectively, the “Website”). Capitalized terms not otherwise defined herein shall have the meanings given to them in the Terms and Conditions.
By becoming a member or placing an order for products or services through the Website (each, an “Order”), you agree to be bound by these Terms of Sale, the Terms and Conditions and the terms of the Order (collectively, the “Agreement”). Any attempt to alter, supplement, modify or amend these Terms of Sale and any additional or different terms proposed by you in any quotation, acknowledgement or any other documents or communications with us are hereby deemed to be material alterations of these Terms and Sale, are rejected, and notice of objection to them is hereby given. Any such changed terms shall be null and void unless agreed to in writing by the Company, and the terms herein shall constitute the complete and exclusive statement of the terms and conditions of the contract between you and the Company for your membership and the sale or rental of products or services. For all products ordered through the Website, the Company and you agree that the terms and conditions printed herein are accepted in good faith by both parties as controlling and final terms and conditions and further agree that there shall be no “battle of the forms” as described in Section 2-207 of the Uniform Commercial Code.
By becoming a member or placing an Order for products or services through the Website, you represent and warrant that (1) you are of legal age to enter into the Agreement created thereby; (2) you accept and are bound by these Terms of Sale; (3) if you place an Order on behalf of an organization, entity, or company, you have the legal authority to bind any such organization, entity, or company, including its subsidiaries and affiliates, to these Terms of Sale. As such, all references to “you” or “your” in these Terms of Sale shall refer and apply to you, individually, as well as any organization, entity or company you represent and its respective subsidiaries and affiliates.
By becoming a member or placing an Order for products or services through the Website, you also represent and warrant that your membership and the products or services ordered will be used only in a lawful manner. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws with regard to your membership and possession, use, and sale of any products or services purchased from us through the Website.
Membership, Products, Services, Membership Term, Rental Term and Pricing
The Website contains information on the Company’s memberships, products, and services, not all of which are available in every location or jurisdiction. A reference to a product or service on the Website does not imply that such product or service is or will be available in your location. The content of the Website is intended for use and display only where its use and display are permissible in accordance with applicable laws and regulations, and we do not warrant that membership, product, or service descriptions or any other content is accurate, complete, reliable, current or error-free.
The term of your membership with the Company (the “Membership Term”), as described on the Website, shall begin on the date (the “Membership Effective Date”) as stated in the Order and shall end on the expiration date set forth in the Order (the “Membership Expiration Date”). The term of any rental of products (the “Rental Term”) through the Website shall begin on the date (the “Rental Effective Date”) as stated in the Order and shall end on the expiration date set forth in the Order or earlier if you elect to purchase the products (the “Rental Expiration Date”). The Company will document the condition, as of the Rental Effective Date, of the products indicated on the Order (the “Original Condition”), and, upon the Rental Expiration Date, you are responsible for returning all products to us in the same Original Condition, except for normal wear and tear, which the Company shall determine in its sole discretion. You understand, agree, and warrant that you will be solely responsible for any excessive wear and tear, damage, or loss to the products during the Term. You have the option to convert any rental of products to a purchase of such products through the Website.
The fees or other amounts due for your membership and the purchase of products and/or services or the rental of products provided pursuant to an Order (“Fees”) shall be set forth on the Order. Except as otherwise provided herein or in the Order, (a) all Fees for your membership shall be due and automatically billed monthly in advance; (b) all Fees for purchased products and/or services are due and payable upon completion of the Order through the Website; and (c) all Fees for rented products shall be due and automatically billed monthly in advance.
All prices are listed in U.S. dollars or and do not include charges for freight, shipping and handling, for sale/use taxes, or for other government required fees, duties or taxes. You are responsible for either (a) payment of all applicable state and local taxes, or (b) for providing a valid sales tax exemption certificate and indicating which products are tax exempt when placing your Order. Market sensitive commodity products will be priced according to current market conditions, and export orders may be subject to other special pricing.
INFORMATION REGARDING THE COMPANY’S MEMBERSHIPS, PRODUCTS, AND SERVICES, INCLUDING THE VARIOUS MEMBERSHIPS’ DESCRIPTIONS/BENEFITS AS WELS AS ALL PRODUCTS’/SERVICES’ AVAILABILITY, APPEARANCE, PRICE, SPECIFICATIONS AND COUNTRY OF ORIGIN ARE SUBJECT TO CHANGE WITHOUT NOTICE.
Payment Methods and Billing
All payments must be made in U.S. dollars. Customers may make payments by providing valid credit or debit card information to our designated third-party payment processors. By becoming a member or placing an Order for the purchase or rental of products and/or the purchase services and submitting credit or debit card information to our third-party billing processors, you give such billing processors permission to charge your membership, rentals, and purchases, including automatic monthly membership and/or automatic monthly rental charges during any Membership Term or Rental Term, respectively, to the card that you designate when submitting an Order. In the event of any excessive wear and tear, damage, or loss, as determined by the Company in its sole discretion, you hereby agree to and give such billing processor permission to charge the total cost of such product or the cost to repair such excessive wear and tear, damage, or loss to your credit or debit card.
If your credit card or debit card has already been charged, and we cancel your Order prior to fulfilling it, you shall receive a credit to your card account in the amount of the charge. If you cancel your Order after products are shipped or services are provided, you will not be entitled to a refund of charges, but charges to your card for recurring membership or rent during any Membership Term or Rental Term will be stopped once the services are paid in full or at the time we receive the products returned by you in Original Condition, normal wear and tear excepted. We will not be responsible (i) for any charges that your card issuer may apply to you as a result of our processing your Order, (ii) if your card issuer refuses or fails to authorize payment by you, or (iii) for any delays or non-delivery of products or services that may arise due to any validation checks that may be carried out regarding your payment or identification.
Additionally, you agree to provide to the Company proper authorization as necessary for the Company to request any financial information from third parties. By placing an Order via the Website, you agree to assume responsibility for, and you hereby unconditionally guarantee payment of, as provided herein, all memberships, purchases, and rental arrangements made by you. You further agree that you, each organization, entity or company you represent, including their respective subsidiaries and affiliates, are jointly liable for purchases made by you.
You further agree that the Company has the right of set-off and deduction for any sums owed by you to the Company.
Order receipt, backorder notification, and shipment confirmation e-mails are sent to the e-mail address you used to create an account or to place your Order. Please note that there may be certain memberships or Orders that we are unable to accept and must cancel. We reserve the right, at our sole discretion, to refuse or cancel any membership or Order for any reason. Some situations that may result in your membership being cancelled include, but are not limited to, non-return of products/services and violation of these Terms of Sale. Some situations that may result in your Order being cancelled include, but are not limited to, the following: limitations on quantities available for purchase or rental; inaccuracies or errors in product, service, or pricing information; product or service restrictions mandated by local, state, national, or international regulations; problems identified by our credit and fraud avoidance group; or violation of these Terms of Sale. We may also require additional verifications or information before accepting any membership or Order.
Shipping and Handling
Any shipping and handling charge is intended to compensate the Company for the cost of handling your Order, packaging the product(s) you have purchased or rented, and delivering products or services to you or to the recipient you designate. Prior to submitting your payment information, you will have the opportunity to review the estimated shipping and handling charge.
Prices stated are FOB origin, freight prepaid to destination specified in the Order. Receipts for shipping and handling charges will not be furnished. COD shipments are not permitted. Other terms and conditions may apply for other than standard ground delivery (“Other Freight Services”), including without limitation, expedited same day delivery, air freight, freight collected, hazardous materials, customer’s carrier, shipments outside the contiguous U.S. or other special handling by the carrier. Any charges incurred for Other Freight Services must be paid by you. Fuel surcharges may be applied.
The Company is not responsible for typographical or other errors in the information you provide when placing your Order.
Title and Risk of Loss
Title and risk of loss of purchased products pass to you upon tender of shipment to the carrier. Risk of loss of rented products passes to you upon tender of shipment to the carrier and remains with you until delivered to the Company. If product(s) are damaged in transit, your only recourse is to file a claim with the carrier. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
Return Policy for Purchased Products
Products purchased or rented through the Website may be returned in accordance with these Terms of Sale. Returned products must be in the same packaging that we used to ship the products to you, unless such packaging was damaged in transit in which case substantially similar packaging must be used, undamaged, and in saleable or rentable condition. Proof of purchase is required in all cases. Product returns may be denied or made subject to restocking fees and other charges by the Company.
Product returns by business customers, if not prohibited above, must be made within thirty (30) days from date of purchase, unless otherwise indicated. The Company does not take title to returned products until the items are received by the Company at the applicable return location.
Service, Support and Repair
The Company has no obligation to provide service, support or repair except in accordance with any express warranty applicable to the covered product. If it is determined that the product needs to be returned for service, support or repair during any applicable warranty period, you must follow the applicable return procedures set forth in these Terms of Sale.
Optional Damage Protection Plan Participation
The following provisions are applicable if you have elected to participate in the Damage Protection Plan. You acknowledge and agree that you are solely responsible for any excessive wear and tear, damage or loss to the products rented from the Company, and the Company has the right to charge your debit or credit card on file to cover the cost of the same. The Company has established the Damage Protection Plan to off-set the cost of excessive wear and tear, damage or loss to the products it rents. You may elect to participate in the Damage Protection Plan by submitting to the Company a non-refundable payment in the amount set forth in and on the date of submission of the Order (“Protection Plan Payment”). The Protection Plan Payment is a one-time, non-refundable payment that is tied to the specific products listed in the Order under which you elect to participate in the Damage Protection Plan. For products covered by additional and future Orders, you must elect to participate in the Damage Protection Plan and you must make the additional Protection Plan Payments set forth in such Order. For products covered by an Order pursuant to which a Protection Plan Payment has been made (“Covered Products”), the Company will accept the risk of excessive wear and tear, damage or loss to the Covered Products. You will continue to be required to return the Covered Products to the Company at the end of the Rental Term, but the Company will make any required repairs to the Covered Products at its expense. If you return the products to the Company in their Original Condition, normal wear and tear excepted, you will not be entitled to a refund of the Protection Plan Payment.
California Proposition 65
The State of California requires that certain warnings be given concerning products which contain chemicals subject to Proposition 65. A complete list of Proposition 65 regulated chemicals is available at www.oehha.ca.gov. For identification of products which contain a chemical subject to Proposition 65, the product itself or the product descriptions contained on the Website may contain one or more warnings similar to the following:
Warning: This product contains a chemical known to the State of California to cause cancer.
Warning: This product contains a chemical known to the State of California to cause birth defects or other reproductive harm.
General Warranty Disclaimers
EXCEPT AS OTHERWISE SET FORTH IN THESE TERMS OF SALE, THE INFORMATION CONTAINED ON THE WEBSITE REGARDING MEMBERSHIP, PRODUCTS, AND SERVICES, INCLUDING THE VARIOUS MEMBERSHIPS’ BENEFITS OR PRODUCTS’/SERVICES’ AVAILABILITY, APPEARANCE, PRICE, SPECIFICATIONS AND COUNTRY OF ORIGIN DO NOT CONSTITUTE A REPRESENTATION, WARRANTY OR OTHER COMMITMENT BY THE COMPANY WITH RESPECT TO ANY MEMBERSHIP, PRODUCT, OR SERVICE AND THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ACCURACY, COMPLETENESS, OR RELIABILITY OF SUCH INFORMATION.
EXCEPT AS EXPRESSLY STATED IN THESE TERMS OF SALE, THE COMPANY MAKES NO OTHER WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THE COMPANY ALSO DISCLAIMS ANY LIABILITY FOR CLAIMS ARISING OUT OF MISUSE, IMPROPER PRODUCT SELECTION, IMPROPER INSTALLATION, MODIFICATION, MISREPAIR OR MISAPPLICATION.
Limitation of Liability
THE COMPANY SHALL NOT BE LIABLE BEYOND THE REMEDIES SET FORTH HEREIN. THE COMPANY’S MAXIMUM AGGREGATE LIABILITY SHALL NOT EXCEED THE TOTAL PRICE PAID FOR THE MEMBERSHIP, PURCHASE, OR RENTAL OF THE PRODUCTS OR THE PRICE OF THE SERVICES ORDERED BY YOU. IN NO EVENT SHALL THE COMPANY BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY CLAIM BY A THIRD PARTY OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. THE COMPANY SHALL NOT BE LIABLE FOR LOSS OF PRODUCT AVAILABILITY, LOSS OR CORRUPTION OF DATA, OR LOSS OF PROFITS OR BUSINESS.
Force Majeure. The Company shall not be liable for any delay in, or impairment of, performance resulting in whole or in part from any force majeure event, including but not limited to acts of God, labor disruptions, acts of war, acts of terrorism (whether actual or threatened), governmental decrees or controls, insurrections, epidemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, inability to procure or ship a product or obtain permits and licenses, inability to procure supplies or raw materials, severe weather conditions, catastrophic events, or any other circumstance or cause beyond the reasonable control of the Company in the conduct of its business.
Assignment. You shall not assign any Order, or any interest therein, without the prior written consent of the Company. Any actual or attempted assignment without the Company’s prior written consent shall be null and void and entitle the Company to cancel such Order upon notice to you. Additionally, the Company may sell or assign its interest, in whole or in part, without notice.
Third Party Beneficiaries. Except for the Company’s subsidiaries and affiliates, the provisions stated herein are for the sole benefit of the parties hereto, and confer no rights, benefits or claims upon any person or entity not a party hereto.
Severability. If any portion of these Terms of Sale is found to be invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable term shall be severed from these Terms of Sale, and the remaining terms and conditions shall be valid and fully enforceable as written.
Indemnification. You shall defend, indemnify and hold harmless the Company, any third party manufacturer or supplier, and their respective officers, directors, employees, subcontractors and agents (each individually, an “Indemnified Party”) from and against any and all any claims, suits, liabilities, damages, settlements, charges, taxes and any other losses or expenses (including reasonable attorneys’ fees) (collectively “Liabilities”) for physical injury to, illness or death of, any third party regardless of status and damage to or destruction of any tangible property which the third party may sustain or incur, to the extent such Liabilities relate to your use or possession of products obtained from the Company, except for such Liabilities relating to or arising out of a final judgment of gross negligence or willful misconduct of the Indemnified Party. In any action, suit or proceeding brought against an Indemnified Party by reason of any such claim as specified above, you shall resist and defend such action, suit or proceeding by counsel of your choice, at your sole expense, provided that (1) the Indemnified Party notifies you promptly in writing of the claim; (2) your counsel does not give rise to a conflict of interest with respect to the Indemnified Party; (3) you have sole control of the defense and all related settlement negotiation but shall keep the Indemnified Party reasonably informed of its status; and (4) the Indemnified Party provides you with all reasonably necessary assistance, information, and authority to perform the foregoing at your expense.