In this Service Agreement (“Agreement”), “Customer, “User, “you” and “your” refer to each customer or user and the totallyguitars.com (“Totally Guitars, LLC”), “we,” “us” and “our” refer to Totally Guitars, LLC. This Agreement explains our obligations to you, and your obligations to us, in relation to your use of our services.
By selecting Totally Guitars, LLC service(s) you have agreed to establish an account with us for such services. When you use your account or permit someone else to use your account to purchase or otherwise acquire access to additional service(s), or to modify or cancel such service(s) (even if we were not notified of such authorization), this Agreement covers any such service or actions. Any acceptance of your application(s) for our services and the performance of our services will occur at our offices in California, the location of our principal place of business. All event and / or services are Non-Refundable.
Totally Guitars, LLC offers products, memberships and other services and information that may assist you in playing the acoustic guitar. Some services and information are provided on an as-is basis from third parties, and Totally Guitars, LLC does not represent or warrant to the truth or accuracy of such information.
3. Fees & Payment.
As consideration for the products, memberships or services you have selected, you agree to pay Totally Guitars, LLC the applicable service(s) fees set forth on our website at the time of your selection. You agree to keep your credit card information accurate and current with Totally Guitars, LLC at all times. All fees are due immediately upon registration and are non-refundable. Totally Guitars, LLC may take all remedies available to collect fees owed and may recover from you all costs and expenses (including reasonable attorney fees) incurred by Totally Guitars, LLC to collect such fees.
In the event of non-payment, reversal of payment, or a charge back by a credit card company or other payment provider, in addition to any other remedies Totally Guitars, LLC may have, we may, in our sole discretion, suspend or terminate your account.
4. Term of Service.
Unless otherwise specified, each Totally Guitars, LLC service is for the selected term and will renew automatically thereafter for successive equivalent terms unless either party elects to terminate such service (which you can do at any time by logging into your Totally Guitars, LLC account and indicating your election to terminate such service or by sending us an e-mail to [email protected] which clearly states which membership URL you would like to cancel). Any renewal of your services with us is subject to our then current terms and conditions and payment of all applicable service fees at the time of renewal.
5. Third-Party Information.
You represent and warrant that you have provided notice to, and obtained consent from, any third party individuals whose personal data you supply to us as part of our services with regard to: (i) the purposes for which such third party’s personal data has been collected; (ii) the intended recipients or categories of recipients of the third party’s personal data; (iii) which parts of the third party’s data are obligatory and which parts, if any, are voluntary; and (iv) how the third party can access and, if necessary, rectify the third party’s personal data. You further agree to provide such notice and obtain such consent with regard to any third party personal data you supply to us in the future. We are not responsible for any consequences resulting from your failure to provide notice or receive consent from such individuals or for your providing outdated, incomplete or inaccurate information.
6. Modifications to Agreement.
Except as otherwise provided in this Agreement, you agree, during the term of this Agreement, that we may revise the terms and conditions of this Agreement and/or change the services provided under this Agreement at any time. Any such revision or change will be binding and effective ten (10) calendar days after the revised Agreement or change to the service(s) is posted on the Totally Guitars, LLC website. You agree to periodically review our website, including the current version of this Agreement available on our website, to be aware of any such revisions. If you do not agree with any revision to the Agreement or change to the services, you may terminate this Agreement at any time. Any fees paid by you prior to termination of your Agreement with us are nonrefundable, but you will not incur any additional fees. By continuing to use our services ten (10) calendar days after any revision to this Agreement or change in service(s) is posted on our website, you agree to abide by and be bound by any such revisions or changes. We are not bound by and you may not rely on any representation concerning this Agreement or our services made by: (i)any agent, representative or employee of any third party that you may use to apply for our services; or (ii) information posted on our Web site of a general informational nature. No employee, contractor, agent or representative of Totally Guitars, LLC or any partner of Totally Guitars, LLC is authorized to alter or amend the terms and conditions of this Agreement.
7. Modifications to your account.
In order to change any of your account information with us, you must use your account name and the password that you selected when you created your Totally Guitars, LLC account. Please safeguard this information from any unauthorized use. In no event will we be liable for the unauthorized use or misuse of your account name or password.
8. Prohibited Conduct.
You agree that you will only use our products, memberships and services for lawful purposes.
9. Notices and Announcements.
You authorize us to notify you as our customer of information that we deem is of potential interest to you. Notices and announcements may include commercial e-mails and other notices describing changes, upgrades, new products and services or other information pertaining to services and/or other relevant matters.
10. Limitation of Liability.
To the extent permitted at law, Totally Guitars, LLC and its partners and contractors will not be liable for any direct, indirect, incidental, special or consequential damages resulting from your use or inability to use any of the Totally Guitars, LLC services or for the cost of procurement of substitute services. We disclaim any and all loss or liability resulting from, but not limited to: (i )any third party claims arising from or based on your use of our services; (ii) access delays or access interruptions; (iii) data non-delivery or data mis-delivery; (iv) acts of God; (v) the unauthorized use or misuse of your Account name or password; (vi) errors, omissions, or misstatements in any and all information or service(s) provided under this Agreement; (vii) the deletion of or failure to store data of any kind; (viii) the development or interruption of your website; or (x) our processing of your application for our services, our processing of any authorized modification to your record or your agents failure to pay any fees, our fees or re-registration fees. You agree that our entire liability, and your exclusive remedy, with respect to any Totally Guitars, LLC service(s) provided under this Agreement and/or for any breach of this Agreement is solely limited to the amount you paid for such service(s).
You agree to release, indemnify, and hold Totally Guitars, LLC, our partners, contractors, agents, employees, officers, directors, shareholders, affiliates and assigns harmless from all liabilities, claims, damages, costs and expenses, including reasonable attorneys’ fees and expenses, relating to or arising from the Totally Guitars, LLC services provided hereunder. When we are threatened with suit or sued by a third party, we may seek written assurances from you concerning your promise to indemnify us; your failure to provide those assurances may be considered by us to be a material breach of this Agreement. In addition, in the event we are made a party to any claim, suit or action by you which is unsuccessful or by a third party in each case relating to or arising from the Totally Guitars, LLC services provided hereunder, you will reimburse us, at a reasonable rate, for all personnel time and expenses expended by us in response to such claim, suit or action including without limitation, all attorney fees and expenses incurred by us with respect to such response.
You agree that your failure to abide by any provision of this Agreement, any Totally Guitars, LLC operating rule or policy, or any dispute policy may be considered by us to be a material breach of this Agreement and that we may, in our sole discretion, elect to cancel the services without further notice to you. We will not refund any fees paid by you prior to the termination of your Agreement due to your breach. Any such breach by you will not be deemed to be excused simply because we did not act earlier in response to that, or any other breach, by you.
13. Representations and Warranties.
You represent and warrant that: (i) the information that you or your agent on your behalf provide to us during the registration for Totally Guitars, LLC service(s) is, accurate and complete, and that any future changes to this information will be provided to us in a timely manner; (ii) you have all requisite power and authority to execute this Agreement and to perform your obligations hereunder; and (iii) you are of legal age to enter into this Agreement.
You release Totally Guitars, LLC, our partners, contractors, agents, employees, officers, directors, shareholders, affiliates and assigns from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with our services. If you are a California resident, you waive California Civil Code �1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
You agree that your use of our service(s) is solely at your own risk. You agree that all of our services are provided on an “as is,” and “as available” basis. WE EXPRESSLY DISCLAIM ALL CONDITIONS, WARRANTIES AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTY OR REPRESENTATION THAT OUR SERVICE(S) WILL MEET YOUR REQUIREMENTS OR THAT THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE(S) OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH OUR SERVICE. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICE IS DONE AT YOUR OWN DISCRETION AND 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 SUCH MATERIAL AND/OR DATA. WE MAKE NO WARRANTY OR REPRESENTATION REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH ANY OF OUR SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH SUCH SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US WILL CREATE ANY CONDITION OR WARRANTY NOT EXPRESSLY MADE HEREIN. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
Totally Guitars, LLC reserves the right to terminate any of its services at any time, with or without notice to you. In the event of such termination, your sole remedy will be to request a refund of any amounts paid to Totally Guitars, LLC for services that were not completed in whole or in part. In the event that a service was partially completed, you may request a refund of the pro-rata portion of such fee for uncompleted services.
You agree that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, that term or provision will be construed consistent with applicable law as nearly as possible to reflect the original intentions of the parties, and the remaining terms and provisions will remain in full force and effect.
You agree that this Agreement and the privacy statement are the complete and exclusive agreement between you and us regarding our services. This Agreement and the privacy statement supersede all prior agreements, representations and understandings, whether established by custom, practice, policy or precedent.
Your rights under this Agreement are not assignable. Any attempt by you to assign your rights will render this Agreement voidable at our option. Any attempt by your creditors to obtain an interest in your rights under this Agreement, whether by attachment, garnishment or otherwise, will render this Agreement voidable at our option.
19. Governing Law.
You agree that this Agreement and any disputes hereunder will be governed in all respects by and construed in accordance with the laws of the State of California, excluding its conflict of laws rules. You and we each submit to exclusive subject matter jurisdiction, personal jurisdiction and venue of the courts of the State of California. You agree that any action, suit or application will be brought and heard in California.
20. Agreement to be bound.
By applying for the product(s), membership(s) and/or service(s) of Totally Guitars, LLC or an affiliate through our online application process, you acknowledge that you have read and agree to be bound by all terms and conditions of this Agreement and any pertinent rules or policies that are or may be published by Totally Guitars, LLC.