(1) These General Terms and Conditions (the "GTC") apply to all orders placed, and purchases made, by Customers (as such term is defined in clause 1(2) below) via the Sennheiser Online Shop accessible here [https://www.sennheiser.com/en-us] (the "Online Shop").

 

(2) We offer products for sale on the Online Shop to end users acting as both consumers (i.e. outside a trade, business, craft or profession) and traders (i.e. for purposes relating to a trade, business, craft or profession) ("Customers"). We do not offer products for sale on the Online Shop to individuals or entities acting as resellers. By placing an order, as set out in the GTC, the Customer confirms that the Customer is acting as an end user and not as a reseller.

 

(3) We strongly recommend that all Customers read the GTC carefully before placing an order and/or making a purchase via the Online Shop. By using our Online Shop, the Customer is agreeing to the GTC. The Online Shop is very diverse, so sometimes additional terms or product requirements (including age requirements) may apply. If additional terms or conditions are available with or applicable to the Online Shop, then those additional terms become part of the Customer’s agreement with us if the Customer uses the Online Shop.  By accessing or using the Online Shop, the Customer intends and agrees to be legally bound by the GTC.  The Customer may wish to print or save a local copy of the GTC for their records. 

 

(4) THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE GTC LIMIT OUR LIABILITY AND THAT THE CUSTOMER IS RELEASING US FROM VARIOUS CLAIMS IN SECTIONS 9 AND 10 BELOW. THE GTC ALSO CONTAIN A BINDING ARBITRATION PROVISION IN SECTION 17 THAT AFFECTS THE CUSTOMER’S RIGHTS UNDER THE GTC WITH RESPECT TO THE ONLINE SHOP.

 

 

 

Our sales in the US are conducted by our local entity. References to “we”, “us” and “our” in the GTC are references to the applicable contracting entity in that location

 

Your location: US
Contracting entity: Sennheiser Electronic Corporation
Contact details: 
Registered address: Old Lyme, CT  06371, One Enterprise Drive

Phone: +1 877-736-6434
Email: services@sennheiser.com
For information about how to contact Sennheiser, please visit our contact page at https://help.sennheiser.com/hc/en-us.

 

 

 

(1) Any policies made available to the Customer within the Online Shop are hereby incorporated by reference into the GTC, including our Privacy Policy, Warranty Conditions, Accessibility Statement, Legal Notice, and Modern Slavery Act Transparency Statement.

 

(2) The Customer may use our Online Shop only for the Customer’s personal non-commercial use, and as permitted by law, including applicable export and re-export control laws and regulations.

 

(3) Using our Online Shop does not give the Customer ownership of any intellectual property rights in our Online Shop, or the products offered for sale in the Online Shop. The GTC does not grant the Customer the right to use any branding, logos, designs, or any other intellectual property used in our Online Shop or the products offered for sale in the Online Shop, including the Sennheiser name, logo, and its affiliated trademarks (the “Intellectual Property”). Any unauthorized use, duplication, publication, modification or dissemination of the Intellectual Property by you is strictly prohibited.

 

 

 

(1) By selecting the "Pay now" button, the Customer makes a binding offer to purchase the relevant product(s) that have been added to the shopping cart, subject to the GTC. We are not obliged to accept the offer. The offer can only be submitted if the Customer accepts the GTC by checking the "By clicking the button below you agree to the terms" box.

 

(2) It is the Customer’s responsibility to ensure that all information provided to us (including delivery and billing details) is accurate and up to date. Promptly following receipt of the offer, we will send the Customer confirmation of receipt of the offer. Such confirmation does not constitute acceptance of the offer. After receiving the confirmation, the Customer should check the order details are correct. If the order is not correct, the Customer should contact us as soon as possible using the contact details given in clause 2(1) of the GTC. We will not be liable to Customers for any failures or delays in processing orders and/or delivering orders as a result of the Customer providing information that is not correct or up to date.

 

(3) A Customer’s offer shall only be deemed to have been accepted by us when we confirm this to the Customer by e-mail or confirm dispatch of the products by email (the “Order Confirmation”). Once the Customer’s offer is accepted, a legally binding contract is formed between us and the Customer incorporating the GTC in force at the time the offer was made. We will send the Customer a copy of the GTC and order confirmation, either as part of the Order Confirmation or via separate email.

 

(4) If a product selected by the Customer is temporarily unavailable at the time of the Customer's order, we will (unless notice is given on the [product details page]) inform the Customer of this in the Order Confirmation, and provide an estimate as to when it will be available for dispatch. If a product is permanently unavailable, we will not accept the Customer's offer. In this case, a contract is not concluded.

 

(5) We reserve the right to make changes to the product with regard to the technical specification, design, range of functions or accessories between order and delivery.

 

(6) The contract is concluded in English.

 

 

 

(1) The purchase price for each product is set out on the product details page of the relevant product in the Online Shop.

 

(2) We may offer different delivery options, with different delivery costs, from time to time. In that case, the delivery options and their costs are set out on the product details page of the relevant product in the Online Shop.

 

(3) Save as set out in clause 5(4) below, all purchase prices and delivery costs are inclusive of all taxes.

 

(4) Customs duties and similar charges shall be borne by the Customer.

 

(5) The Customer agrees to pay all amounts owed to us for the Online Shop under any terms, policies or other written or electronic agreement we may have in place. We only accept those payment options set out in the Online Shop for the purchase of products. All payments are subject to approval by the relevant financial institutions. Sennheiser will not be liable if any payment method is declined or not honored by such financial institutions for any reason.

 

(6) When paying for an order, the Customer does not have the right to withhold any amount owed to us in order to set-off any amount we owe to the Customer.

 

(7) We may require the Customer to maintain valid credit card or other payment account information with us in order to purchase products in the Online Shop, and if so, the Customer hereby authorizes us to charge the Customer’s credit card or other payment account for the purchased product(s) in the Online Shop. The Customer’s right to purchase products through the Online Shop is conditioned upon our receipt of payment.  Refusal of product delivery does not release the Customer from payment liability. If a payment cannot be charged to the Customer’s credit card or if a charge is canceled for any reason, or if the Customer fails to maintain valid, up-to-date payment information or to keep the Customer’s payments current, we reserve the right to immediately either suspend or terminate the Customer’s access and account immediately without notice, thereby terminating the GTC. Any failure to maintain valid, up-to-date payment information with us or to keep the Customer’s payments current will constitute a material breach of the GTC, for which we may suspend or terminate the Customer’s access to the Online Shop immediately without notice. Interest will be charged on all unpaid delinquent amounts at the rate of 1.5% per month or the highest rate permitted by applicable law, whichever is lesser.  The Customer agrees to reimburse us for all collection agency fees, attorneys’ fees and other costs we may incur to collect delinquent amounts the Customer owes to us.

 

 

 

(1) All periods for the delivery of the products stated by us in the order or otherwise agreed shall commence (a) if advance payment has been agreed, on the day of our receipt from the Customer of the full purchase price (including taxes) and shipping costs, or (b) if payment following shipping has been agreed, on the day on which the purchase contract is concluded.

 

(2) Deadlines specified by us for the delivery of the products are approximate only. This shall not apply if a fixed delivery date has been agreed between the Customer and us. If no delivery deadline or date for delivery is specified or otherwise agreed, the applicable delivery period shall be deemed to be five working days.

 

(3) If the Customer has purchased multiple products in one order, we may send these in several separate deliveries, whereby we shall bear the additional shipping costs incurred as a result. This shall not restrict the Customer's statutory rights with regard to timely and proper delivery.

 

(4) Unless expressly agreed otherwise, we shall determine the appropriate mode of shipment and the carrier at our reasonable discretion.

 

(5) The delivery time will vary depending on the delivery option that the Customer selects. The delivery time will be set out next to the applicable delivery option on the product details page of the relevant product in the Online Shop. All delivery times specified by us are approximate only.

 

 

 

(1) If the Customer is a consumer, responsibility for the product will pass to the Customer upon delivery of the product to the address given by the Customer. If the Customer is a trader, responsibility for the product will pass to the Customer upon delivery of the products to the carrier (if we are responsible for shipment).

 

(2) We continue to own the products delivered by us until the purchase price for the products in question has been paid in full by the Customer. If the Customer is a trader, we will also continue to own the products until full payment is made by the Customer of any outstanding amounts owed by the Customer to us (whether relating to the order in question or otherwise).

 

(3) Where the Customer is in receipt of the products but we still own the products (i.e. where the products have been delivered to the Customer but the Customer has not yet paid for them), the Customer must treat the products with care and will be liable to us for any damage caused to the products as a result of failing to do so.

 

(4) In the event of seizure by a third party of any products that we still own - in particular by bailiffs - the Customer shall (where applicable) inform the relevant third party of our ownership and inform us immediately so that we can enforce our ownership rights.

 

 

 

The provisions set out in clauses 8(1) to 8(2) only apply to Customers that are consumers:

(1) Customers that are consumers have certain rights under law in their respective residing jurisdictions, including that a product is as described, fit for purpose and of satisfactory quality. Such Customers also have certain remedies available to them under law if a product does not comply with these requirements, for example to a refund, repair or replacement.

 

(2) Nothing in the GTC limits or excludes the rights a Customer that is a consumer has under law in their residing jurisdiction.

 

The provisions set out in clauses 8(3) to 8(8) only apply to Customers that are traders:

(3) The products supplied to any Customer that is a trader shall be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and be free from material defects in design, material and workmanship and remain so for a period of 12 months from risk passing to the Customer as set out in clause 7 above or, in the case of software, for a period of 24 months from the date of provision of the licence key (“Trader Warranty”). All implied statutory or common law terms, conditions and warranties as to the product are excluded to the fullest extent permitted by law.

 

(4) The Customer must carefully inspect the products promptly following delivery. The delivered products shall be deemed to have been approved by the Customer, and the Customer will not be able to rely on the Trader Warranty in respect of a particular defect, if such defect is not notified to us (i) in the case of obvious defects, within five working days of delivery or (ii) otherwise within five working days of discovery of the defect during the applicable warranty period of the Trader Warranty.

 

(5) Wear-and-tear due to use does not entitle the user to claim under the Trader Warranty.

 

(6) If defects or damage are due to culpable behaviour or improper handling by the Customer or a third party not commissioned by us (e.g. improper installation or use of unsuitable accessories), these are excluded from the Trader Warranty.

 

(7) If the products or software (as applicable) do not meet the requirements of the Trader Warranty, we will (at our option) repair or replace the defective product or software, or provide a refund of the purchase price. 

 

(8) In addition to those rights granted under law, we may provide additional guarantees in respect of products. Details of the scope of any such guarantees can be found in the applicable guarantee conditions. These can be accessed at https://www.sennheiser.com/en-us/support/terms-conditions-warranty.

 

(9) For questions regarding your order, or regarding these GTC, you may contact us through our contact page at https://help.sennheiser.com/hc/en-us.

 

 

 

(1) OTHER THAN AS EXPRESSLY SET FORTH IN THE GTC, NEITHER SENNHEISER NOR ITS LICENSORS, SUPPLIERS, ADVERTISERS, OR DISTRIBUTORS MAKE ANY SPECIFIC PROMISES ABOUT THE ONLINE SHOP AND/OR THE PRODUCTS AVAILALBLE IN THE ONLINE SHOP. FOR EXAMPLE, WE DON’T MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE ONLINE SHOP, THE SPECIFIC FUNCTIONS OF THE ONLINE SHOP, THE PRODUCTS IN THE ONLINE SHOP, OR THE RELIABILITY OR AVAILABILITY OF THE ONLINE SHOP OR THE PRODUCTS, OR THE ABILITY OF THE ONLINE SHOP OR THE PRODUCTS TO MEET THE CUSTOMER’S NEEDS.  WE ALSO DO NOT MAKE ANY WARRANTIES OR COMMITMENT RELATING TO NON-INFRINGEMENT, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, OR ERROR-FREE OR UNINTERRUPTED OPERATIONS IN CONNECTION WITH THE ONLINE SHOP OR THE PRODUCTS.  WE PROVIDE THE ONLINE SHOP, THE PRODUCTS IN THE ONLINE SHOP, AND ALL INFORMATION PROVIDED THROUGH THE ONLINE SHOP “AS-IS.” WE ARE NOT RESPONSIBLE FOR INJURIES SUSTAINED OR ILLNESSES SUFFERED IN CONNECTION WITH THE CUSTOMER’S USE OF THE PRODUCTS WITHIN THE ONLINE SHOP OR ANY TECHNIQUES OR PRACTICES DESCRIBED IN THE ONLINE SHOP.

 

(2)  SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES.

 

(3) THE CUSTOMER AND CUSTOMER’S HEIRS, SUCCESSORS, AND ASSIGNS HEREBY FOREVER IRREVOCABLY RELEASE, DISCHARGE, AND HOLD HARMLESS US, OUR AFFILIATES, AND OUR AND THEIR SUCCESSORS AND ASSIGNS, AND OUR AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS  (COLLECTIVELY, “RELEASED PARTIES”) FROM, AND AGREE NOT TO SUE ANY RELEASED PARTY FOR, ANY LIABILITIES, CLAIMS, OBLIGATIONS, SUITS, ACTIONS, DEMANDS, EXPENSES, AND DAMAGES WHATSOEVER (COLLECTIVELY, “LIABILITIES”) THAT THE CUSTOMER MAY HAVE AGAINST ANY RELEASED PARTY WHETHER EXISTING NOW OR IN THE FUTURE, WHETHER KNOWN OR UNKNOWN, ARISING OUT OF OR IN CONNECTION WITH THE CUSTOMER OR A THIRD PARTY’S CONDUCT RELATED TO USE OF THE ONLINE SHOP AND/OR THE PRODUCTS. THE CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT THE FOREGOING SENTENCE RELEASES AND DISCHARGES ALL LIABILITIES, WHETHER OR NOT THEY ARE CURRENTLY KNOWN TO THE CUSTOMER, AND THE CUSTOMER WAIVES ITS RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542. THE CUSTOMER UNDERSTANDS THE MEANING OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” BY AGREEING TO THE GTC AND THIS WAIVER, THE CUSTOMER ASSUMES ALL RISK ARISING FROM YET UNKNOWN CLAIMS.

 

 

 

(1) TO THE EXTENT NOT PROHIBITED BY LAW, SENNHEISER (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND OUR LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.

 

(2) TO THE EXTENT NOT PROHIBITED BY LAW, THE TOTAL LIABILITY OF SENNHEISER (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND OUR LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, FOR ANY AND ALL CLAIMS UNDER THE GTC OR RELATING TO THE CUSTOMER’S USE OF THE ONLINE SHOP AND/OR THE PRODUCTS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT THE CUSTOMER PAID US FOR THE PRODUCT IN THE ONLINE SHOP (OR, IF WE CHOOSE, TO SUPPLY THE CUSTOMER WITH THE PRODUCT FROM THE ONLINE SHOP AGAIN).

 

(3) IN ALL CASES RELATING TO PROVIDING THE CUSTOMER WITH THE ONLINE SHOP AND THE PRODUCTS, SENNHEISER (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND ITS LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE OR THAT IS DUE TO EVENTS OUTSIDE OF OUR REASONABLE CONTROL, SUCH AS WARS, CRIMINAL ACTIVITIES, STORMS, DELAYS (INCLUDING, BUT NOT LIMITED TO, DELAYS SHIPPING THE PRODUCTS, OR FAILURES OR DELAYS OF COMMON CARRIERS), PUBLIC HEALTH EMERGENCY, NATURAL DISASTERS, ACTS OF GOVERNMENT, SUPPLY INTERRUPTIONS, OR TELECOMMUNICATION OR INTERNET FAILURES.

 

(4)  Information on potential dangers of individual products that only become known after the purchase contract has been concluded and information on product recalls are regularly published on our website.

 

 

 

(1) The Customer hereby agrees to indemnify, defend, and hold harmless Sennheiser, its affiliated companies, and its and their predecessors, successors, and assigns, and its and their respective directors, officers, employees, agents, representatives, partners, and contractors from and against all claims, losses, expenses, damages and costs (including, but not limited to, reasonable attorneys' fees), resulting from or arising out of the Customer’s actual or alleged breach of the GTC, or the Customer’s use or misuse of the Online Shop and/or the products offered for sale in the Online Shop. However, the Customer will not be responsible for claims, damages, and costs which are found by a court of competent jurisdiction to have arisen solely from our violation of applicable law.

 

 

 

(1) We offer the Customer the opportunity to return the ordered products within 30 days without giving reasons and to receive a refund of the purchase price paid, unless one of the exceptions set out below applies. The period for which a product is eligible to be returned begins on the day on which the Customer or a third party designated by the Customer, who is not the carrier, has taken possession of the product. We shall bear the costs of the return if the Customer registers the return in the Online Shop and uses the return label provided by us by e-mail. For products which cannot be sent as parcel post due to their nature and which are labelled as "bulky goods" on the invoice, the following applies: We will collect the products from the Customer's delivery address.

 

(2) A Customer’s right to the voluntary right of return is subject to:

• the products being unused;
• the products and their packaging being undamaged; and
• the products being complete and there being no missing parts.

Testing or trying out the products is deemed to be use of the products for these purposes.

If a product does not meet one or more of the foregoing, it will not be eligible for return.

 

(3) The voluntary right of return does not apply to:

• Software downloaded online and licence keys sent to the Customer by e-mail;

• Products that are manufactured according to Customer specifications or are clearly customised to the Customer's personal requirements;

• Parts that have already been installed by the Customer;

• Batteries, rechargeable batteries, cables or similar items if their seal or packaging has been opened;

• Products sold by the metre;

• Items that cannot be returned for reasons of hygiene.

 

(4) There is no right of return if the Customer has ordered the provision of a service and we have provided the service in full or have already started to provide the service.

 

 

 

(1) Certain software may be made available for download free of charge in the Online Shop at [https://www.sennheiser.com/en-de/support/downloads-and-instructions]. The software can only be used if the Customer has previously purchased the corresponding licence key. This will be sent to the Customer by e-mail. 

 

(2) We shall provide the Customer with updates for the software for a period of 24 months, which are required to maintain the contractual use. The Customer can download the updates from our website https://www.sennheiser.com/en-us/support/downloads-and-instructions.

 

(3) Installation, customisation and implementation of the software as well as consulting or training are not part of the purchase and must be agreed separately.

 

(4) Upon full payment of the purchase price, the Customer shall receive a non-exclusive right to use the software for an unlimited period of time. The authorised use includes the installation of the software and the purpose for which the software was designed.

 

(5) In the event of a defect, we will provide replacement software, save where the relevant software is outdated or no longer available. In such case, we will provide alternative software. If necessary, the Customer must accept the latest version of the software in the course of replacement. This shall not result in any extra costs for the Customer.

 

(6) There is no voluntary right of return for software purchases.

 

 

 

Please see the privacy policy available on our website for details about how Customer personal data is processed in respect of the Online Shop (https://www.sennheiser.com/en-de/privacy-policy). Our privacy policy explains how we treat the Customer’s personal information and protect the Customer’s privacy when they use our Online Shop. By using our Online Shop, the Customer agrees that we can collect, use, and share data from the Customer as described in our privacy policy. We are not responsible for any information that the Customer shares with others via the Customer’s use of the Online Shop.  The Customer assumes all privacy, security, and other risks associated with providing any information, including personally identifiable information, to other users of the Online Shop.

 

 

 

The GTC is governed by, and will be interpreted in accordance with, the laws of the United States and of the state of Connecticut.

 

 

 

(1) We may modify the GTC or any additional terms that apply to the Online Shop for any reason, for example, to reflect changes to the law or changes to our Online Shop. The Customer should look at the GTC regularly and the “Last updated” date at the beginning of the GTC.  We’ll use reasonable efforts to give the Customer notice of these modifications, such as posting notice of modifications to the GTC on this web page, through the Online Shop, or via email. By continuing to use the Online Shop after we make these modifications, the Customer agrees that they will be subject to the modified GTC. Deviations from and amendments to the GTC may only be agreed in writing between us and the Customer. If the Customer does not agree to the modified terms for the Online Shop, the Customer should discontinue their use of the Online Shop.

 

(2) The version of the GTC that apply are the version that is valid at the time the contract is concluded in accordance with section 4(3). The current version of the GTC is available at https://www.sennheiser.com/en-us/legal/terms-and-conditions. If there is a conflict between the GTC and any additional terms for the Online Shop, the additional terms will control to the extent of any such conflict.

 

(3) Should individual provisions of the GTC - for whatever reason - not apply, this shall not affect the validity of the remaining provisions.

 

(4) The GTC control the relationship between Sennheiser and the Customer. They do not create any third-party beneficiary rights.  If the Customer does not comply with the GTC, and we don’t take action right away, this doesn’t mean that we are giving up any rights that we may have (such as taking action in the future).  If it turns out that a particular term of the GTC is not enforceable, this will not affect any other terms of the GTC.

 

(5) We will not be liable to any Customer for any delay or failure to perform any of our obligations under the GTC for reasons, events or other matters beyond our reasonable control.

 

(6) The Customer may not assign or delegate their rights or obligations relating to the GTC or the Customer’s account for the Online Shop without our prior written consent.  We may assign the GTC or assign or delegate any of our rights or obligations at any time.

 

(7) We are constantly changing and improving our Online Shop. We may add or remove functionalities or features, and we may suspend or stop the Online Shop altogether, at any time, without any notice or liability. The Customer can stop using our Online Shop at any time, although we’ll be sorry to see the Customer go. We may also stop providing the Online Shop to the Customer, or add or create new limits to our Online Shop, at any time.

 

 

 

(1) PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS THE CUSTOMER’S LEGAL RIGHTS. IT PROVIDES FOR RESOLUTION OF MOST DISPUTES THROUGH INDIVIDUAL ARBITRATION. ARBITRATION IS MORE INFORMAL THAN A LAWSUIT IN COURT, USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, AND DISCOVERY IS MORE LIMITED. ARBITRATION IS FINAL AND BINDING AND SUBJECT TO ONLY VERY LIMITED REVIEW BY A COURT. THIS SECTION ALSO CONTAINS A JURY TRIAL WAIVER AND A WAIVER OF ANY AND ALL RIGHTS TO PROCEED IN A CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTION IN ARBITRATION OR LITIGATION TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

 

(2) The Customer acknowledges and agrees that any violation of the GTC relating to the disclosure, use, copying, distribution, display, or publishing of the information and/or their associated offerings may result in irreparable injury and damage to Sennheiser that may not be adequately compensable in money damages, and for which Sennheiser will have no adequate remedy at law. The Customer, therefore, consents and agrees that Sennheiser may obtain injunctions, orders, or other equitable relief as may be reasonably necessary to ensure compliance with the GTC. The Customer waives any requirement of the posting of a bond that may apply for issuance of any injunctions, orders, or other equitable relief.

 

(3) This Dispute Resolution (including Arbitration Agreement; Class Action Waiver; Jury Trial Waiver) section will survive any termination of the GTC.

 

(4) Arbitration Agreement:

a. Binding Arbitration. This provision is intended to be interpreted broadly. Any dispute or claim arising out of or relating to the GTC, the Customer’s use of the Online Shop, the Privacy Policy, or the Customer’s relationship with Sennheiser or any past, present, or future claims, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory (“Dispute”), will be resolved through binding individual arbitration, except that either of us may take a Dispute to small claims court so long as it is not removed or appealed to a court of general jurisdiction. Any disagreement as to whether a Dispute is within the jurisdictional limits of small claims court is for a court to decide and any arbitration shall be stayed.

“Dispute” shall include, but not be limited to: (i) any dispute or claim that arose before the existence of these or any prior GTC (including, but not limited to, claims relating to advertising); (ii) any dispute or claim that is currently the subject of purported class action litigation in which the Customer is not a member of a certified class; and (iii) any dispute or claim that may arise after termination of the GTC. Dispute, however, does not include disagreements or claims concerning patents, copyrights, trademarks, and trade secrets and claims of piracy or unauthorized use of intellectual property. The arbitrator shall decide all issues except the following (which are for a court of competent jurisdiction to decide): (i) issues that are reserved for a court in the GTC; (ii) issues that relate to the scope, validity, and enforceability of the arbitration agreement, class action waiver, or any of the provisions of this Dispute Resolution section; and (iii) issues that relate to the arbitrability of any Dispute. The GTC and this arbitration agreement do not prevent the Customer from bringing a Dispute to the attention of any government agency. The Customer or Sennheiser may seek any interim or preliminary relief from a court of competent jurisdiction necessary to protect rights or property pending the completion of arbitration. The Customer and we agree that the GTC evidence a transaction in interstate commerce and that this arbitration agreement will be interpreted and enforced in accordance with the Federal Arbitration Act at 9 U.S.C. Section 1, et seq and federal arbitration law, not state arbitration law.

 

b. Mandatory Informal Dispute Resolution Process. The Customer and we agree to work together in an effort to informally resolve any Dispute between us. The party initiating the Dispute must send the other a written notice of the Dispute that includes all of this information: (i) information sufficient to identify any transaction, activity, and account at issue; (ii) contact information (including name, address, telephone number, and email address); and (iii) a detailed description of the nature and basis of the Dispute (including the date of any transaction or activity at issue) and the relief sought, including a calculation for it. The notice must be personally signed by the party initiating the Dispute (and their counsel, if represented). If the Customer has the Dispute with us, the Customer must send this notice via Submit a request at https://help.sennheiser.com/hc/en-us. If we have a Dispute with the Customer, we will send this notice to the most recent contact information we have for the Customer. For a period of 60 days from receipt of a completed notice (which can be extended by agreement of the parties), the Customer and we agree to negotiate in good faith in an effort to informally resolve the Dispute. The party receiving the notice may request a telephone settlement conference to aid in the resolution of the Dispute. If such a conference is requested, the Customer and a Sennheiser representative will personally attend (with counsel, if represented). The conference will be scheduled for a mutually convenient time, which may be outside of the 60-day period. Completion of this Mandatory Informal Dispute Resolution Process (“Process”) is a condition precedent to initiating a claim in arbitration. If the sufficiency of a notice or compliance with this Process is at issue, such issue may be raised with and decided by a court of competent jurisdiction at either party’s election, and any arbitration shall be stayed. The court shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of arbitrations. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with this Process in arbitration. All applicable limitations periods (including statutes of limitations) will be tolled from the date of receipt of a completed notice through the conclusion of this Process. The Customer or we may commence arbitration if the Dispute is not resolved through this Process.

 

c. Arbitration Procedures. The arbitration shall be administered by National Arbitration and Mediation (“NAM”) and heard by a single, neutral arbitrator. Except as modified by the GTC, NAM shall administer the arbitration in accordance with their rules applicable to the nature of the Dispute, including the Comprehensive Dispute Resolution Rules and Procedures and/or the Supplemental Rules for Mass Arbitration Filings, as applicable (“NAM Rules”). The NAM Rules and fee information are available at “www.namadr.com.” If NAM is unable or unwilling to administer the arbitration consistent with the GTC, the parties shall agree on an alternate administrator that will do so. If the parties cannot agree, they shall petition a court of competent jurisdiction to appoint an alternate administrator that will do so.

 

The party seeking to initiate arbitration must provide the other party with the demand for arbitration as specified in the NAM Rules and this section 17. The Customer may obtain a form to initiate arbitration at “https://www.namadr.com/content/uploads/2020/09/Comprehensive-Demand-for-Arb-revised-9.18.19.pdf” or by contacting NAM. If the Customer is initiating arbitration, the Customer shall serve the demand on Sennheiser via Submit a request at https://help.sennheiser.com/hc/en-us. If Sennheiser is initiating arbitration, Sennheiser shall serve the arbitration demand via email at the contact information Sennheiser has on file for the Customer.

 

An arbitration demand must be accompanied by a certification of compliance with the Process and be personally signed by the party initiating arbitration (and counsel, if represented). By submitting an arbitration demand, the party and counsel represent that, as in court, that they are complying with the requirements of Federal Rule of Civil Procedure 11(b). The arbitrator is authorized to impose any sanctions available under Federal Rule of Civil Procedure 11 on represented parties and their counsel. The Customer may choose to have the arbitration conducted by a phone, video, or in-person hearing, or through written submissions, except any Dispute seeking $25,000 or more, or injunctive relief, shall have an in-person or video hearing unless the parties agree otherwise. The Customer and we reserve the right to request a hearing in any matter from the arbitrator. The Customer and a Sennheiser representative will personally appear at any hearing (with counsel, if represented). Unless the Customer and Sennheiser agree otherwise, any arbitration hearing will take place in Old Lyme, CT. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the fullest extent allowable by applicable law, the Customer and we agree that each may bring claims against the other only in the Customer or our individual capacity and not as a plaintiff or class member in any purported class, collective, consolidated, private attorney general, or representative proceeding. Further, unless both the Customer and we agree otherwise, an arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of class, collective, consolidated, private attorney general, or representative proceeding. An arbitrator will apply the GTC as a court would. If, after exhaustion of all appeals, any of these prohibitions on non-individualized injunctive or declaratory relief and class, collective, consolidated, private attorney general, or representative proceedings are found to be unenforceable with respect to a particular claim or request for relief (such as a request for public injunctive relief), then such a claim or request for relief will be decided by a court of competent jurisdiction, after all other claims and requests for relief are arbitrated.

 

The arbitrator shall issue a reasoned written decision sufficient to explain essential findings and conclusions. The arbitrator shall apply the cost-shifting provisions of Federal Rule of Civil Procedure 68 after entry of an award. Judgment on any arbitration award may be entered in any court of competent jurisdiction, except an award that has been satisfied may not be entered. An award shall have no preclusive effect in any other arbitration or proceeding in which the Customer is not a named party.

 

d. Costs of Arbitration. Payment of arbitration fees will be governed by the NAM Rules and fee schedule. The Customer and we agree that the parties have a shared interest in reducing the costs and increasing the efficiencies associated with arbitration. The Customer and we therefore agree that the parties (and counsel, if represented) will work together in good faith to ensure that arbitration remains cost-effective for all parties.

 

e. Additional Procedures for Mass Filings. The Customer and we agree that these Additional Procedures for Mass Filings (in addition to the other provisions of this arbitration agreement) shall apply if the Customer chooses to participate in a Mass Filing. If 25 or more similar Disputes (including the Customer’s) are asserted against Sennheiser by the same or coordinated counsel or are otherwise coordinated (“Mass Filing”), the Customer understands and agrees that the resolution of the Customer’s Dispute might be delayed and ultimately proceed in court. The parties agree that as part of these procedures, their counsel shall meet and confer in good faith in an effort to resolve the Disputes, streamline procedures, address the exchange of information, modify the number of Disputes to be adjudicated, and conserve the parties’ and NAM’s resources.

If the Customer’s claim is part of a Mass Filing, any applicable limitations periods (including statutes of limitations) shall be tolled for the Customer’s Dispute from the time that the Customer’s Dispute is first submitted to NAM until the Customer’s Dispute is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration pursuant to this provision.

 

STAGE ONE: If at least 50 Disputes are submitted as part of the Mass Filing, counsel for the claimants and counsel for Sennheiser shall each select 25 Disputes to be filed and to proceed as cases in individual arbitrations as part of this initial staged process. The number of Disputes to be selected to proceed in Stage One can be increased by agreement of counsel for the parties (and if there are fewer than 50 Disputes, all shall proceed individually in Stage One). Each of the 50 (or fewer) cases shall be assigned to a different arbitrator and proceed individually. If a case is withdrawn before the issuance of an arbitration award, another claim shall be selected to proceed as part of Stage One. The remaining Disputes shall not be filed or deemed filed in arbitration in connection with those claims. After this initial set of proceedings, counsel for the parties shall participate in a global mediation session with a retired federal or state court judge jointly selected by counsel in an effort to resolve the remaining Disputes (as informed by the adjudications of cases in Stage One), and Sennheiser shall pay the mediator’s fee.

 

STAGE TWO: If the remaining Disputes have not been resolved at the conclusion of Stage One, counsel for the claimants and counsel for Sennheiser shall each select 50 Disputes per side to be filed and to proceed as cases in individual arbitrations as part of a second staged process. The number of Disputes to be selected to proceed as part of this second staged process can be increased by agreement of counsel for the parties (and if there are fewer than 100 Disputes, all shall proceed individually in Stage Two). No more than three cases may be assigned to a single arbitrator to proceed individually. If a case is withdrawn before the issuance of an arbitration award, another claim shall be selected to proceed as part of Stage Two. The remaining Disputes shall not be filed or deemed filed in arbitration. After this second set of staged proceedings, the parties shall engage in a global mediation session of all remaining Disputes with a retired federal or state court judge jointly selected by counsel in an effort to resolve the remaining Disputes (as informed by the adjudications of cases in Stages One and Two), and Sennheiser shall pay the mediator’s fee.

Upon the completion of the mediation set forth in Stage Two, each remaining Dispute (if any) that is not settled or not withdrawn shall be immediately opted out of arbitration and may proceed in a court of competent jurisdiction consistent with the remainder of the GTC. Notwithstanding the foregoing, counsel for the parties may mutually agree in writing to proceed with the adjudication of some or all of the remaining Disputes in individual arbitrations consistent with the process set forth in Stage Two (except Disputes shall be randomly selected and mediation shall be elective by agreement of counsel) or through another mutually-agreeable process. A court of competent jurisdiction shall have the authority to enforce the Additional Procedures for Mass Filings, including the power to enjoin the filing or prosecution of arbitrations.

 

The parties agree that they each value the integrity and efficiency of arbitration and wish to employ the process for the fair resolution of genuine and sincere disputes between us. The Customer and Sennheiser acknowledge and agree to act in good faith to ensure the processes set forth herein are followed. The parties further agree that application of these Additional Procedures for Mass Filings has been reasonably designed to result in an efficient and fair adjudication of Disputes.

 

The Additional Procedures for Mass Filings provision and each of its requirements are essential parts of this arbitration agreement. If, after exhaustion of all appeals, a court of competent jurisdiction decides that the Additional Procedures for Multiple Case Filings apply to the Customer’s Dispute and are not enforceable, then the Customer’s Dispute shall not proceed in arbitration and shall only proceed in a court of competent jurisdiction consistent with the remainder of the GTC.

 

f. Future Changes to Arbitration Agreement. If we make any future changes to this arbitration agreement (other than a change to our contact information), the Customer may reject any such change by sending the Customer’s personally signed, written notice to the Submit a request form at https://help.sennheiser.com/hc/en-us within 30 days of the change. Such written notice does not constitute an opt out of arbitration altogether. By rejecting any future change, the Customer is agreeing that the Customer will arbitrate any Dispute between the Customer and Sennheiser in accordance with this version of the arbitration agreement.

 

(5)  Class Action Waiver and Jury Trial Waiver: 

THE CUSTOMER AND WE EACH AGREE THAT ANY PROCEEDING, WHETHER IN ARBITRATION OR IN COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION. THE CUSTOMER AND WE AGREE TO WAIVE ANY RIGHT TO BRING OR TO PARTICIPATE IN SUCH AN ACTION IN ARBITRATION OR IN COURT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. NOTWITHSTANDING THE FOREGOING, THE CUSTOMER AND WE RETAIN THE RIGHT TO PARTICIPATE IN A CLASS-WIDE SETTLEMENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE CUSTOMER AND WE WAIVE THE RIGHT TO A JURY TRIAL. THIS CLASS ACTION AND JURY TRIAL WAIVER WILL SURVIVE ANY TERMINATION OF THE GTC.