Effective Date: 2/5/2025
Scope. THESE TERMS AND CONDITIONS (“TERMS”) FORM A LEGALLY BINDING AGREEMENT BETWEEN US, D&M HOLDINGS U.S., INC (“DENON”), AND YOU IF YOU TAKE STEPS TO COMPLETE AN ORDER TO SUBSCRIBE TO A DENON+ (THE “PROGRAM”) PRODUCT THAT WE OFFER ON RECURRING SUBSCRIPTION (“LICENSED HARDWARE”), EITHER ELECTRONICALLY OR THROUGH A SIGNED DOCUMENT WITH US (“ORDER”). IN THE EVENT OF A CONTRADICTION BETWEEN THESE TERMS AND ANOTHER AGREEMENT BETWEEN YOU AND US, THESE TERMS SHALL PREVAIL TO THE EXTENT OF THE CONTRADICTION. PLEASE READ THESE TERMS CAREFULLY AS THEY INCLUDE LIMITATIONS TO OUR LIABILITY, AMONG OTHER CLAUSES THAT MAY IMPACT YOUR DECISION TO SUBSCRIBE TO THE PROGRAM.
WE RESERVE THE RIGHT TO MAKE CHANGES TO THESE TERMS AT ANY TIME AND FOR ANY REASON. WE WILL USE REASONABLE EFFORTS TO NOTIFY YOU ABOUT ANY CHANGES BY UPDATING THE “LAST UPDATED” DATE OF THESE TERMS AND BY SENDING YOU AN EMAIL AT THE EMAIL ADDRESS PROVIDED UPON REGISTERING FOR THE PROGRAM. IT IS YOUR RESPONSIBILITY TO PERIODICALLY REVIEW THESE TERMS TO STAY INFORMED OF UPDATES. YOU WILL BE SUBJECT TO AND WILL BE DEEMED TO HAVE BEEN MADE AWARE OF AND TO HAVE ACCEPTED THE CHANGES IN ANY REVISED TERMS BY YOUR CONTINUED USE OF THE PROGRAM OR LICENSED HARDWARE AFTER THE DATE THE REVISED TERMS ARE POSTED. IF YOU DON’T AGREE WITH THESE CHANGES, YOUR ONLY OPTION IS TO CANCEL THE PROGRAM AND STOP USING THE LICENSED DEVICE.
Eligibility. YOU MAY NOT SUBSCRIBE TO THE PROGRAM, ACCESS, USE, OR OBTAIN LICENSED HARDWARE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT AT LEAST THE LEGAL AGE OF MAJORITY TO FORM A BINDING CONTRACT IN THE COUNTRY IN WHICH YOU RESIDE, OR (C) ARE PROHIBITED FROM SUBSCRIBING TO THE PROGRAM, ACCESSING, USING ANY OF OUR LICENSED HARDWARE OR SERVICES BY APPLICABLE LAW. IF YOU ARE USING A WEBSITE OF OURS OR ONE OF OUR AFFILIATES TO SUBSCRIBE TO THE PROGRAM, YOU AGREE THAT YOUR USE OF THE WEBSITE IS SUBJECT TO THE WEBSITE TERMS OF USE SHOWN THEREON.
The Program. The Program consists of a continuous subscription to access and use the Licensed Hardware, as specified in an Order, on a monthly or other periodic basis (each, a “Program Subscription”) throughout the term of the Program Subscription until the Program Subscription is cancelled or terminated in accordance with these Terms. The Program and Program Subscription is not a rent-to-own program. The Licensed Hardware remains the property of Denon and only stays active for the duration of the Program Subscription.
Rights Granted Under the Program.
License Grant.
Provided that the Program Subscription is active and in good standing, Denon hereby grants to you and authorized members of your household (“Household User”) a revocable, personal, non-sublicensable, non-transferable, license to use the Licensed Hardware. In addition, Denon hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use and access the Program.
Provided that the Program Subscription is active and in good standing, you will be eligible to (i) receive a new Licensed Hardware, within the same category or class of device as indicated in the Order for a particular Program Subscription and that is of equal or lesser value, at the time interval (e.g. 12, 24 or 36-months) indicated in your Order when subscribing to a Program Subscription (“Device Refresh Interval”); and (ii) retain a revocable, personal, non-transferable, non-sublicensable license to use the original Licensed Hardware (now, “Decommissioned Hardware”). You shall not remove, alter or destroy in any way any Licensed Hardware or Decommissioned Hardware, or any label or trademarks on the devices. You will keep the Licensed Hardware any Decommissioned Hardware in good repair, appearance, and condition, subject to normal wear and tear.
Restrictions; Limitations. You will not use the Program in any manner or for any purpose other than as expressly permitted by this Agreement. Without limitation of the foregoing, the rights granted under this Section 2 do not include or authorize: (a) modifying, disassembling, decompiling, reverse engineering or otherwise making any derivative use of the Licensed Hardware, Denon Apps or any accessories or using or accessing the Program to build a competitive product or service; (b) using any data mining, robots or similar data gathering or extraction methods except as provided by the Program or accessories; (c) performing or disclosing any benchmarking or performance testing of the Program; (d) selling, licensing, renting, leasing, assigning, distributing, displaying, hosting, disclosing, outsourcing or otherwise commercially exploiting the Program, the Licensed Hardware, or any Decommissioned Hardware except as authorized in this Agreement; (e) alter or remove any copyright, trademark or other proprietary notice which may appear in the Denon App, on the Licensed Hardware, or in the Program; or (e) using the Program other than for its intended use. During and after the term of the Subscription Program, you will not assert, nor authorize, assist or encourage any third party to assert, against Denon or its affiliates, subsidiaries, successors, and assigns, and each of their respective members, directors, officers, employees and agents (“Denon Parties”), any patent infringement or other intellectual property infringement claim regarding the Licensed Hardware, Denon App or any accessory that you or any Household User has used. The rights granted under this Section 2 are conditioned on your continued compliance with this Agreement (including, without limitation, Household Users’ compliance with this Agreement), and will immediately and automatically terminate if you do not comply with any material term or condition of this Agreement.
Coverage for Lost, Damaged, or Stolen Licensed Hardware. You will notify Denon without undue delay in the event that the Licensed Hardware is lost or stolen. Denon will remotely deactivate such lost or stolen Licensed Hardware rendering the device useless. If at any point you recover such lost or stolen Licensed Hardware after receiving a replacement from Denon, you will notify Denon in writing (via email) and Denon will determine whether you should return or dispose of the recovered unit. In the event of accidental damage, loss or theft of the Licensed Hardware, you are entitled to one (1) discounted repair or replacement during each Device Refresh Interval that your Subscription Program is active and in good standing, with a new or refurbished unit or parts, of the Licensed Hardware (“Accidental Loss Claim”). For any Accidental Loss Claim, Denon, it is sole discretion, will determine whether to repair or replace the Licensed Hardware, and such repairs or replacement may be with new or refurbished parts or devices as determined by Denon. For any Accidental Loss Claim, you will be charged the amount shown for your Licensed Hardware in the table located here. You authorize Denon to charge your payment method provided under Section 4 for any such repair or replacement costs. All shipping costs, for units delivered under accidental loss or damage coverage, are to be incurred and paid by you. You may be required to present a police report to validate a stolen hardware claim.
Additional Perks. Denon will contact all Program subscribers via email on a monthly basis with offers from selected partners. In addition, Program subscribers will periodically receive, via email, the chance to win prize giveaways. Giveaways will require subscribers to opt-in to be eligible and will be randomly selected from the entrants. No additional purchase is necessary for the giveaways.
Privacy Notice. Your use of the Program is subject to the Denon Privacy Policy, incorporated by reference herein, which governs the collection, storage, and sharing of your and your Household Users personal information.
Orders and Payment.
Ordering. By placing an Order with us, you are making an offer to us to enroll in a Program Subscription. At the time you place your Order, we pre-authorize your payment method for the first monthly payment amount plus applicable taxes, shipping charges and any other surcharges. When we accept your Order, we collect payment from your selected payment method. By placing your Order, you authorize us to transmit information or to obtain information about you from third parties for purposes of fulfilling the Order. This may include verification checks involving your debit or credit card number or credit reports, in order to authenticate your identity. When a word appears in its singular form in these Terms, such as “Licensed Hardware”, the word also implies its plural form, where applicable, and vice-versa. All Orders are subject to acceptance by us. For the avoidance of doubt, we may decline or limit the quantities on any Order, in whole or in part, for any reason. If we have processed payment prior to non-acceptance of your Order, we will issue a refund of any amounts actually received by us. Please note that it can take 7 business days or longer for the bank to transfer the funds to you. If we accept your Order, we will notify you of the acceptance by sending you an order confirmation. These Terms shall form part of any Order. Any term or condition you include in any Order or other document you provide shall be of no force or effect. Our acceptance of an Order shall not be deemed an acceptance of any conflicting or additional terms, and we hereby reject any different or additional terms or conditions that you propose.
Continuous Subscription. Upon Denon’s acceptance of a Program Subscription Order, you expressly acknowledge and agree THAT (A) denon (OR OUR THIRD PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE you AT THE BEGINNING OF EVERY MONTH OR OTHER PERIODIC BASIS (AS SELECTED BY you VIA THE ORDER) FOR your program SUBSCRIPTION (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS your program SUBSCRIPTION CONTINUES, AND (B) your program SUBSCRIPTION IS CONTINUOUS UNTIL you CANCEL IT OR denon SUSPENDS OR STOPS PROVIDING ACCESS TO THE PROGRAM IN ACCORDANCE WITH THIS AGREEMENT. In the event that your program subscription becomes past due or denon is unable to receive payment from your selected payment method, denon may temporarily suspend your program subscription and your device will be locked. you will continue to be liable for all recurring program subscription fees during any temporary suspension to your program subscription for non-payment. Your Program subscription will continue until cancelled in accordance with section 6. in order to restore your program subscription to active or to formally cancel, you will be required to fully pay any past due balance that has accrued.
Free or Promotional Trials. From time to time, to the extent legally permitted, Denon may offer free or reduced rate promotional trials of certain Program Subscriptions for specified periods of time without payment or for a reduced promotional price. If Denon offers you a free or promotional trial, the specific terms of the free or promotional trial will be provided in the marketing materials describing the particular trial, during the online order process when the code for the trial is entered on Denon operated websites.
ONCE THE FREE OR PROMOTIONAL TRIAL ENDS, you AUTHORIZE Denon (OR OUR THIRD PARTY PAYMENT PROCESSOR) TO BEGIN CHARGING your DESIGNATED PAYMENT METHOD ON A RECURRING BASIS FOR you program SUBSCRIPTION (PLUS ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS THE program SUBSCRIPTION CONTINUES, UNLESS CUSTOMER CANCELS THE program SUBSCRIPTION PRIOR TO THE END OF THE FREE OR PROMOTIONAL TRIAL OR OTHERWISE CANCELS THE program SUBSCRIPTION IN ACCORDANCE WITH THe cancellation policy.
Pricing. The price charged for a Program Subscription will be the price in effect at the time the Order is placed and will typically be set out in your order confirmation email or another communication from us. All prices are shown in the currency of the country in which you reside. Taxes and surcharges, if applicable, will typically be itemized separately on an order form and must be paid by you at checkout and on each recurring payment as described in Section 4.2. Denon reserves the right to adjust prices as Denon may determine in its sole discretion, at any time and without notice; provided, however, that if Denon changes the amounts or other charges associated with your Program Subscription, Denon will use reasonable efforts to provide advance notice of such changes in accordance with this Agreement and applicable law.
Certifying Payment Information. You can find the available payment methods during the checkout process. You represent and warrant that (i) you are at least the age of majority in your country, state or province of residence; (ii) the credit card information you supply is true, correct and complete, (iii) you are duly authorized to use such credit card for the purchase, (iv) charges incurred by you will be honored by your credit card company, and (v) you will pay charges incurred by you at the posted prices, including all applicable fees and taxes, if any. If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order or Program Subscription may be suspended or cancelled. You must resolve any problem Denon encounters in order to proceed with you Program Subscription. In the event you want to change or update payment information associated with your account, you can do so by logging into the Program and editing the payment information.
Title and Risk of Loss. Denon owns all right, title and interest in and to the Program and all Licensed Hardware, Decommissioned Hardware and/or accessories, including any and all intellectual property right therein, provided to you under the Program Subscription. Risk of loss to any Licensed Hardware, Decommissioned Hardware and/or accessories will pass to you upon our delivery of such Licensed Hardware, Decommissioned Hardware, and/or accessories to the carrier we select to ship to you. Risk of loss will remain with you until Denon receives such Licensed Hardware, Decommissioned Hardware and/or accessories back from you following a cancellation of the Program Subscription or for repair or replacement under the warranty or Accidental Loss Claim.
Delivery and Shipping. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any losses you may suffer as a result of our delays in shipments. If we are unable to ship products within the time anticipated or 30 days of receiving a properly completed order, we may request your consent to a delay in shipping. Absent this consent, we will cancel your order and refund any payment that has already been collected. It is your responsibility to provide complete and accurate delivery address information. We will not be liable if you provide incomplete or inaccurate information.
Cancellation Policy. YOU MAY CANCEL THE PROGRAM SUBSCRIPTION AT ANY TIME BY LOGGING INTO YOUR ACCOUNT ON THE PROGRAM AND FOLLOWING THE INSTRUCTIONS TO CANCEL. YOU WILL BE RESPONSIBLE FOR ALL CHARGES (INCLUDING ANY APPLICABLE TAXES AND OTHER CHARGES) INCURRED WITH RESPECT TO FEES PROCESSED PRIOR TO THE CANCELLATION OF YOUR PROGRAM SUBSCRIPTION. FOLLOWING CANCELLATION OF THE PROGRAM SUBSCRIPTION, YOU WILL BE REQUIRED TO RETURN TO DENON ALL LICENSED HARDWARE, DECOMMISSIONED HARDWARE AND ACCESSORIES WITHIN THIRTY (30) DAYS FOLLOWING YOUR CANCELLATION. IF YOU FAIL TO RETURN THE PRODUCT TO DENON, YOU WILL BE CHARGED THE FULL RETAIL VALUE OF THE UNIT. YOU AUTHORIZE DENON TO CHARGE THE PAYMENT METHOD UNDER SECTION 4 FOR SUCH CHARGES. WITHOUT LIMITING THE FOREGOING, YOU WILL NOT RECEIVE A REFUND FOR ANY PARTIAL MONTH. For instructions on where and how to return the Licensed Hardware after cancellation, please contact us via [email protected] or at the Contact Us page on the denon.com website: United States/ United Kingdom.
Termination. Denon may terminate these Terms and discontinue the Program or any Program Subscription (including the Denon App) at any time in its sole discretion and without notice or liability to you. In addition, the rights granted under these Terms will automatically terminate without notice if you fail to comply with any material provision of these Terms. In such event, you must immediately stop using the Program, any Licensed Hardware, Decommissioned Hardware or accessories. You may also choose to terminate your access and use of the Program, Program Subscription and Licensed Hardware at any time by cancelling your subscription in accordance with Section 6. This will not limit or affect any remedy available to Denon for your breach of these Terms.
Limited Warranty.
Denon warrants that the Licensed Hardware will be free from defects in materials and workmanship, under normal use, throughout the term of the Program Subscription, provided it is active and in good standing. In the event you are eligible for a new Licensed Hardware as described in Section 2.1(b), any warranties provided under this Agreement will transfer from the Decommissioned Hardware to the new Licensed Hardware. Any license to continue to use any Decommissioned Hardware will be provided “as is” without warranties of any kind (express or implied). To be eligible for warranty service, you must contact the Denon customer service team and have requested a Return Merchandise Authorization (RMA) under warranty.
Denon will use commercially reasonable efforts to correct any manufacturing or workmanship nonconformance of Licensed Hardware, which may include repair or replacement at Denon’s sole discretion, with new or refurbished hardware or parts. Unless otherwise stated in the Order, you will be responsible for all shipping charges to and from Denon for any warranty claims made during the Program Subscription. For the avoidance of doubt, the warranties and remedies listed under this Section 8 do not apply to Decommissioned Hardware.
THE REMEDIES DESCRIBED IN THIS SECTION 8 WILL BE DENON’S SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF THE FOREGOING WARRANTY.
Disclaimer of Warranties. EXCEPT FOR THE LICENSED HARDWARE WARRANTY EXPRESSLY SET FORTH HEREIN AND SUBJECT TO ANY LEGAL RIGHTS YOU MAY HAVE UNDER ANY LAW THAT APPLIES TO YOU WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED BY AGREEMENT (“YOUR CONSUMER RIGHTS”), TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SITE, THE PROGRAM AND ALL DECOMMISSIONED HARDWARE ARE PROVIDED ON AN “AS IS” AND “AS A AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND YOU HEREBY WAIVE, RELEASE, AND DISCLAIM, ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE PROGRAM, SITE OR ANY DECOMMISSIONED HARDWARE, INCLUDING ANY WARRANTY THAT THE PROGRAM, SITE OR ANY DECOMMISSIONED HARDWARE WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY MATERIALS OR DATA WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, DENON AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
Limitations of Liability.
IN NO EVENT SHALL ANY OF THE DENON PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE PROGRAM, ANY LICENSED HARDWARE OR THE SITE, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF ANY OF THE DENON PARTIES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE COMPENSATION PAID BY YOU, IF ANY, TO DENON FOR SUCH PROGRAM SUBSCRIPTION FOR THE 12 MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO LIABILITY.
THE LIMITATIONS SET FORTH IN THIS SECTION WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL MISCONDUCT OF THE DENON PARTIES OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. THE LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE RELATIONSHIP BETWEEN DENON AND YOU.
Indemnification. You agree to fully defend, indemnify, and completely hold harmless Denon and Denon Parties, from any and all liabilities, claims, expenses, damages, including reasonable legal fees and disbursements, arising out of or relating to (i) the use of or access to the Program, the Licensed Hardware, or Decommissioned Hardware, (ii) your failure to comply with any applicable laws, (iii) any act or omission which is, or can be determined to be, a breach of any term or condition in these Terms or (iv) your violation of any rights of any other person or entity.
Resolution of Disputes. This Section only applies if you reside in the United States of America.
Purpose. The term “Dispute” means any dispute, claim, or controversy, except as specifically excluded in Subparagraph 12.2 below, between you and us, or any Denon Parties relating to your relationship with us or our affiliates, your use of the Program, the Licensed Hardware, Decommissioned Hardware, our privacy practices, or the interpretation, application, or enforcement of these Terms (including the validity, enforceability or scope of this Section), whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory. The term Dispute is to be given the broadest possible meaning that will be enforced. If any Dispute should arise between you and us, or any of our Denon Parties that cannot be resolved through negotiation within the time frame described in the “Notice of Dispute” clause below, you and we agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this Section 12, and not litigate any Dispute in court, except for those matters listed in the Exclusions from Arbitration clause. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
Exclusions from Arbitration. You and we agree that the following causes of action and/or claims for relief are exceptions to the Disputes covered by the arbitration agreement and will be brought in a judicial proceeding in a court of competent jurisdiction (as outlined in this arbitration agreement): (i) any claim or cause of action alleging actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) any claim or cause of action seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack); or (iii) a request for the remedy of public injunctive relief, where such remedies are permitted and cannot be waived by applicable law. You or we may alternatively bring Disputes in small claims court, to the extent a dispute meets such requirements.
Opt-Out Right. YOU HAVE THE RIGHT TO OPT OUT OF BINDING ARBITRATION AND THE CLASS ACTION WAIVER WITHIN 60 DAYS. If you do not wish to be bound by the binding arbitration and class action waiver in this section, you must notify us in writing within 60 days of the date that you accept, or anyone acting on your behalf accepts, these Terms unless a longer period is required by applicable law (the “Opt-Out Deadline”). Your written notification must be sent to [email protected] and must include: (1) your name, (2) your address, (3) the email address associated with your online account with us, if you have one, and (4) a clear statement that you do not wish to resolve Disputes with us through individual arbitration.
In order to validly terminate the arbitration agreement, we must receive your opt-out notice no later than 3 days after the Opt-Out Deadline for it to be valid. You agree that you must pursue any claim in arbitration or small claims court if we do not receive an opt-out notice from you, or if we receive an opt-out notice from you more than 3 days after the Opt-Out Deadline. If the opt-out notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the opt out notice on your behalf. To use or assert your opt-out notice to contest the transfer of any Dispute to arbitration or to compel arbitration of any Dispute, you hereby agree to keep and present proof of your opt-out notice and its compliance with the procedures detailed in these Terms. You agree that failure to keep and provide this proof will forfeit your ability to rely on your opt-out notice to contest arbitration.
If, after your initial acceptance of these Terms, you have not submitted an opt-out notice by the Opt-Out Deadline, then you are bound by the binding arbitration and class action waiver provisions in these Terms. In the event that these Terms have not been modified or amended, and you subsequently communicate or reaffirm your acceptance to these Terms at a later time, this Opt-Out Right in this Section 12.3 shall not apply to that communication or reaffirmation. In the event these Terms are modified or amended, you may notify us in writing, and pursuant to the procedures listed above in this Section 12.3, within 60 days of the date that you accept the modifications or amendments to these Terms, that you choose to opt out of the modifications and amendments, but only with regard to the modifications or amendments, if any, that alter the arbitration and/or class action waiver provisions in these Terms.
Notice of Dispute. IF YOU HAVE A DISPUTE WITH US, YOU MUST SEND WRITTEN NOTICE TO [email protected] TO GIVE US THE OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION. Your notice must contain the following information: (1) your name, (2) your address, (3) your email address or phone number associated with your account, (4) your online membership ID, if any, (5) a brief description of the nature of the complaint, and (6) the resolution sought (together, the “Required Information”). If your notice does not contain all of the Required Information (or an explanation of why you are unable to include any of the Required Information), then the Notice of Dispute shall be without effect, and must be resent before any arbitration or other legal action may be initiated against us. This requirement is intended to inform us that you have a Dispute to be resolved. You and we agree to negotiate resolution of the Dispute in good faith for no less than 60 days after you provide notice of the Dispute. All negotiations under this Section will be confidential and will be treated as compromise and settlement negotiations under all applicable laws. If you and we do not resolve the Dispute within 60 days from receipt of your notice of the Dispute, you or we may pursue a claim in arbitration pursuant to the terms in this section.
CLASS ACTION WAIVER. YOU AND WE AGREE THAT ARBITRATION WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND WE SPECIFICALLY AGREE TO DO SO IN WRITING, EXCEPT AS OTHERWISE DESCRIBED BELOW IN THIS PARAGRAPH AND THIS SECTION 14. IF APPLICABLE LAW PRECLUDES ENFORCEMENT OF THE LIMITATION IS THIS PARAGRAPH AS TO A PARTICULAR REMEDY, THEN A CLAIM SEEKING THAT REMEDY (AND ONLY THAT REMEDY) MUST BE SEVERED FROM THE ARBITRATION AND BROUGHT IN COURT.
In addition to the AAA Rules, you and we agree that upon motion of one or more affected parties, and after providing all other affected parties an opportunity to be heard, the arbitrator may, in its discretion, coordinate more than one arbitration proceeding initiated under this arbitration agreement, in order to promote efficiency in discovery and to avoid inconsistent legal rulings. For the avoidance of doubt, any coordination under the preceding sentence will be limited only to currently pending arbitrations initiated under these Terms, and the arbitrator may not preside over any form of a representative or class proceeding. All parties will retain the right to request an individualized hearing.
If a court or arbitrator determines, in an action between you and us where you purport to bring a class action, that this class action waiver is unenforceable, this arbitration agreement will not apply to you. If you opt out of the arbitration agreement as specified above, this class action waiver will not apply to you. Neither you, nor any other user, can be a class representative, class member, or otherwise participate in a class, consolidated or representative proceeding without having complied with the opt-out procedure set forth above.
Initiation of Arbitration/Selection of Arbitrator. If you and we are unable to resolve a Dispute through the pre-dispute negotiation process, you or we may then, and only then, initiate an arbitration proceeding with the American Arbitration Association (“AAA”), in accordance with the rules of the AAA (as applicable, and as modified by this Section 12), including the Commercial Arbitration Rules and Consumer Arbitration Rules, as applicable (the “AAA Rules”). The AAA Rules and information about arbitration and fees are available online at www.adr.org or by calling 1-800-778-7879. The terms of this section govern in the event they conflict with the AAA Rules. Should the AAA decline to administer the arbitration or otherwise be unable to administer the arbitration for any reason, you agree that we shall select an alternative arbitration forum, and that you will agree in writing to administration of the arbitration by the alternative arbitration forum selected by us.
Arbitration Procedures. Because our relationship with you, or your use of the Products, concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, applicable federal or state law may also apply to the substance of any Disputes. You and we agree that California law will be the state law that applies to these Terms. The arbitration shall be conducted in the English language.
We agree to pay all filing, administration, and arbitrator fees, other than the initial filing fee to be paid by you, and if your Dispute is for less than $1,000, we will reimburse you for the filing fee upon written request for reimbursement with documentation of insufficient funds to pay the fee. In the event that you are able to demonstrate that the costs of arbitration would be prohibitive as compared to costs of litigation, we will pay as much of the filing fee in connection with the arbitration as the arbitrator deems necessary in order to prevent the arbitration from being cost-prohibitive as compared to the costs of litigation. In all other cases, we and you will bear the fees and expenses for each party’s own respective attorneys, experts, witnesses, and for preparation and presentation of evidence at the arbitration. The parties agree that the arbitrator shall award arbitrator compensation, administrative fees, and the prevailing party’s reasonable attorney’s fees to the prevailing party in any legal proceeding, regardless of venue, that resolves a Dispute. Any arbitration will be confidential, and you and we agree not to disclose the existence, content, documents, or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award.
Arbitration Location. You or we shall initiate arbitration in Orange County, California. In the event any other legal proceeding takes place outside of arbitration, the parties agree to be subject to jurisdiction in and hereby choose Orange County, California as the parties’ exclusive venue.
Arbitration Award. The arbitrator will have the power to grant declaratory or injunctive relief, whether interim or final, only in favor of you individually and only to the extent necessary to provide relief warranted by your individual claim without affecting other customers, and any provisional measures ordered by the arbitrator may be enforced by any court of competent jurisdiction. Nothing in this section will prevent you from seeking public injunctive relief separately from arbitration in court, and any such application will not be deemed incompatible with the agreement to arbitrate or as a waiver of the right to arbitrate your individual claims. You and we agree that any proceedings seeking a remedy of public injunctive relief will proceed after the arbitration of all arbitrable Disputes, and will be stayed pending the outcome of the arbitration (pursuant to section 3 of the FAA). The arbitrator’s award will be binding and final, except for any right of appeal provided by the FAA or these Terms, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Severability. If any clause within this arbitration agreement (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this section, and the remainder of this arbitration agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable in its entirety, this entire arbitration agreement will be unenforceable, and the Dispute will be decided by a court.
Continuation. This section survives any termination of these Terms or the provision of our Products or services to you.
Intellectual Property. You shall not use our trademarks, name, logo, likeness, trade dress, designs, patents, or other proprietary rights (“Intellectual Property”) without written permission from us. You shall not alter, cover, deface, remove, or otherwise change any of our Intellectual Property or make changes to any materials provided by us or in connection with the Program. You shall not register any of our Intellectual Property in your own name or that of another unauthorized party.
Updates. Denon may modify or discontinue any feature or content of the Program at any time and in its sole discretion. Denon may, but is not obligated to, provide you with reasonable notice of any modification, change, or discontinuance of any feature or content of the Program. Masimo is not liable to you or to any third party for any modification or discontinuance of any feature or content of the Program. Except as otherwise expressly provided herein, these Terms will govern any updates to the Program that Denon makes available, unless such updates are provided under a separate agreement.
Miscellaneous.
Entire Agreement. These Terms (including any linked, referenced, or incorporated terms or policies) constitute the entire agreement between you and us with respect to the subject matter of these Terms.
Amendment. We reserve the right to change these Terms from time to time at our sole discretion. Denon will provide you with notice of any changes to these terms via email and by updating the “Last Update” date. You will be deemed to have accepted any amendment following your receipt of the notice of any changes and your continued use of the Program, Licensed Hardware or Decommissioned Hardware.
Severance. If any part of the Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions of the Terms.
Waiver. No waiver by us shall be construed as a waiver of any proceeding or succeeding breach of any provision.
Third Parties. Nobody else has any rights under this contract. This contract is between you and us. No other person shall have any rights to enforce any of its terms.
Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
Governing Law. These Terms shall be governed by the laws of the jurisdiction in which you reside.
Survival. Any section within these Terms, which by its very nature are intended to survive any termination or cancellation, shall continue in full force and effect.
Interpretation. No rule of strict construction shall apply against or in favor of either party in the construction and interpretation of these Terms.