The following Terms of Use are entered into by and between you and Avedis Zildjian Company (“Zildjian,” “we,” “our,” or “us”). These terms and conditions, together with any documents expressly incorporated by reference (collectively, the “Terms”), govern your access to and use of the websites located at zildjian.com and vicfirth.com (together with all affiliated subdomains, the “Sites”) and our related services, content, features, mobile applications, and functionality (together with the Sites, the “Services”).  

Please read these Terms carefully before you start to use the Services. By using the Services or by clicking to accept or agree to the Terms when this option is made available to you, you accept and agree to be bound by these Terms and you acknowledge that you have read our Privacy Policy. By using the Services, you represent and warrant that you are of legal age to form a binding contract with Avedis Zildjian Co. and meet all applicable eligibility requirements.  

For individuals who reside in the United States, these Terms contain a mandatory individual arbitration agreement and a class action and jury trial waiver that require, with limited exceptions, the use of final and binding arbitration on an individual basis to resolve disputes, rather than jury trials or class or representative actions.  

The Services include online stores and interactive features made available by Zildjian to enable users to learn about and shop for our products, access content, and create accounts. The Services are not intended for use by anyone under the age of 18. To use certain features of the Services, you will need to register for an account (an “Account”). By registering for an Account, you agree to provide accurate, current, and complete information and to maintain and promptly update such information as necessary. You are responsible for the security of your Account and accept all risks of unauthorized access. You agree to immediately notify us if you discover or suspect any breach of security related to your Account or the Services.  

We may require you to provide additional information and documents at the request of a competent authority or to help us comply with applicable law, regulation, or policy

You may be able to create, post, upload, submit, store, or otherwise make available content, data, text, photographs, audio, video, reviews, comments, suggestions, feedback, or other materials through the Services (“User Content”).  

As between you and Avedis Zildjian Co., and to the fullest extent permitted by applicable law, you hereby irrevocably assign, transfer, and convey to Avedis Zildjian Co., exclusively and in perpetuity, all right, title, and interest in and to all User Content, including all intellectual property and proprietary rights therein and thereto, whether now known or hereafter existing, throughout the world. To the extent any assignment is not permitted by law or is incomplete, you hereby grant Zildjian an exclusive, perpetual, irrevocable, worldwide, fully paid, royalty-free, transferable, and sublicensable license to host, use, reproduce, distribute, publicly perform, publicly display, modify, adapt, translate, create derivative works from, and otherwise exploit such User Content for any purpose in any media now known or hereafter developed, without compensation to you.  

You waive, to the fullest extent permitted by law, any and all moral rights or similar rights you may have in the User Content, and you agree never to assert such rights against Zildjian or our designees. You appoint Zildjian as your attorney-in-fact to execute any documents and take any actions that Zildjian deems necessary to perfect, record, or enforce the foregoing assignment.  

You represent and warrant that you have all rights, licenses, consents, permissions, power, and authority necessary to submit the User Content and to grant the foregoing assignment and rights; that the User Content does not infringe, misappropriate, or violate any intellectual property, privacy, publicity, or other rights of any third party; and that the User Content complies with these Terms and applicable law. You are solely responsible for your User Content. We have no obligation to store or maintain any User Content and may remove or refuse to display any User Content at any time for any reason.  

If you submit ideas, suggestions, or feedback to Zildjian regarding the Services or our products (“Feedback”), you acknowledge and agree that Zildjian will own all rights in such Feedback and may use it without restriction or compensation to you.  

Certain areas of the Sites may enable you to access online forums where you can post messages and read messages posted by other users (the “Forums”). Some of the Forums topics are selected by Zildjian and others are created by users. Zildjian does not endorse, and specifically disclaims any responsibility or liability for, any content posted on the Forums, whether the topic is first selected by Zildjian or a user. The Forums are a free service provided to users of Zildjian. By posting or reading a message in the Forums, you agree to be bound by the following terms and conditions. If you do not want to be bound by these terms, then do not use the Forums. You agree to be fully responsible for your own postings and agree to access and use the Forums at your own risk on an as-is basis. While Zildjian has no obligation to monitor the Forums, it may, from time to time, monitor the Forums to determine whether postings comply with these Terms of Use, to guide the discussion on the Forums or for other reasons. Zildjian cannot and does not guarantee that it will post or continue to post every message or other content you or other users submit to the Forum. Also, Zildjian reserves the right to edit or abridge postings for any reason and to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or remove any information or materials, in whole or in part, in Zildjian’s sole discretion. You must abide by the following rules in connection with your use of the Forums: 

By posting a message, uploading a file or engaging in any other form of communication through a Forum, you are granting Zildjian a perpetual, royalty-free and irrevocable right and license to use, reproduce, modify, adapt, publish, translate, distribute, transmit, display, perform, sublicense, create derivative works based upon, transfer and sell any such messages, files or communications. You agree to indemnify and hold Zildjian and its affiliates and their respective officers, directors and employees harmless from any claims, damages, losses or costs (including reasonable attorney’s fees) that arise out of any of your postings and any material contained therein. 

EXTERNAL SITES

The Services may include hyperlinks to third-party websites or resources (“External Sites”) as a convenience. We have no control over and are not responsible for the availability, content, products, services, or other materials on or available from External Sites. You acknowledge and agree that we will not be liable for any loss or damage arising from your use of External Sites.  

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL ZILDJIAN BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF REVENUE, PROFITS, BUSINESS, GOODWILL, DATA, OR OTHER INTANGIBLE LOSSES, ARISING FROM OR RELATING TO THESE TERMS OR THE SERVICES, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE OR WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AFOREMENTIONED LIMITATION OF LIABILITY DOES NOT APPLY TO DAMAGES RESULTING FROM INTENT OR GROSS NEGLIGENCE ON THE PART OF ZILDJIAN OR THEIR FULFILLMENT AGENTS, OR TO DAMAGES TO LIFE, LIMB, OR HEALTH.   

FOR US RESIDENTS: NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL OUR MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS OR YOUR ACCESS TO OR USE OF THE SERVICES OR CONTENT EXCEED THE GREATER OF THE AMOUNT PAID TO ZILDJIAN BY YOU FOR THE ITEM OR SERVICE THAT IS THE SUBJECT OF THE CLAIM.  

Some jurisdictions do not allow the exclusion or limitation of certain damages, so the above limitation or exclusion may not apply to you to the extent prohibited by law. 

Please read this section carefully because it requires you to arbitrate certain disputes and claims with Zildjian and limits the manner in which you can seek relief from us.  

These Terms, including all matters of construction, validity, and performance, and all disputes arising out of or connected with these Terms and the Services (each, a “Dispute,” and collectively, “Disputes”), shall be governed by and construed in accordance with the laws of Massachussetts without regard to its conflict of laws principles, except that the arbitration clause herein shall be governed by the Federal Arbitration Act.  

FOR US RESIDENTS:  

Any Dispute shall first be submitted to mediation under the Commercial Mediation Procedures of the American Arbitration Association (“AAA”). If mediation is not successful within two (2) months of the appointment of a mediator, such Dispute shall be settled by individual arbitration under the Commercial Arbitration Rules of the AAA. The place of mediation or arbitration shall be Plymouth County, MA. The language of the mediation or arbitration shall be English. The arbitrator shall be an attorney or expert with experience in commercial, consumer, or technology agreements.  

Notwithstanding the foregoing, any Dispute not resolved through arbitration that is less than $10,000 USD and qualifies for treatment on a non-jury basis in a small claims court in Plymouth County, MA may be resolved in such small claims court on an individual basis at the election of either party.  

All Disputes shall be mediated, arbitrated, or litigated on an individual basis. You irrevocably waive any right to proceed on a class, collective, or representative basis. You and we agree that the arbitrator may award relief only to an individual claimant and only to the extent necessary to provide relief on that individual’s claim(s). Any relief awarded may not affect other users. You and we agree that, by entering into these Terms, you and we are each waiving the right to a trial by jury.  

This section shall not limit the right of Zildjian to collect payments due or prevent either party from commencing any action or proceeding to compel arbitration, obtain injunctive relief pending the appointment of an arbitrator, or obtain execution of any award rendered. Venue for all such proceedings shall be the state or federal courts located in [County], [State]. The parties shall bear their own expenses, except that the parties shall equally share the expenses of any mediator or arbitrator (except for required non-refundable filing fees, which shall be paid by the party asserting the Dispute). The prevailing party in any arbitration may seek from the arbitrator an award of reasonable attorneys’ fees and costs incurred. Judgment on any award may be entered in any court having jurisdiction.  

These Terms, any applicable supplemental terms, and our Privacy Policy constitute the entire legal agreement between you and us and are the final and integrated agreement governing your access to and use of the Services, replacing any prior or contemporaneous agreements, whether oral or written. Except as otherwise provided herein, these Terms are intended solely for the benefit of Zildjian and you and are not intended to confer third-party beneficiary rights upon any other person or entity. Your relationship to Zildjian is that of an independent contractor, and neither party is an agent or partner of the other.  

If any part of these Terms is held invalid, illegal, void, or unenforceable, that portion will be deemed severed and will not affect the validity or enforceability of the remaining provisions. Our failure or delay to exercise or enforce any right or provision will not constitute a waiver. You may not assign any of your rights or obligations under these Terms without our prior written consent; we may assign our rights and obligations under these Terms in our sole discretion to an affiliate, a service provider, or in connection with an acquisition, sale, or merger. These Terms shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. 

All matters arising out of or relating to these Terms will be governed by and construed in accordance with the laws of Massachusetts and the federal laws of the United States applicable therein, without giving effect to any choice or conflict of law provision or rule. Subject to the Dispute Resolution section above, any legal action or proceeding arising under these Terms will be brought exclusively in the state or federal courts located in Plymouth County, MA, and you and we irrevocably consent to the personal jurisdiction and venue of such courts. 

Mandatory Consumer Protection Standards under German and European law for contracts with German or EU consumers are excluded from this paragraph.