Terms of service

TERMS & CONDITIONS FOR ONLINE OFFERS TO PURCHASE

Please read all of these terms and conditions (“Terms”) carefully before submitting your pre-order for a PHONOCUT Maschinen GmbH (“PHONOCUT”) PHONOUCT home vinyl recorder (the “Product”). By submitting your pre-order, you agree to be legally bound by these Terms.

Please note that if you funded PHONOCUT through Kickstarter and expect to receive the Product as a Kickstarter reward, these Terms do not apply to you, instead, the terms found at the Kickstarter site apply to you. 

As explained in these Terms in more detail:

  • These Terms provide that all disputes related to these Terms will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Arbitration Agreement in Section 16 for the details regarding your agreement to arbitrate any disputes arising under these Terms. (See Section 16)
  • By submitting your pre-order, you are offering to purchase a Product from us. We may reject your offer and refund all amounts paid by you. (See Section 1)
  • Specifications for our Products may change from the specifications currently published on our website. (See Section 4)
  • Shipping of the Products may be significantly delayed. (See Section 5)
  • PHONOCUT’s liability is limited. (See Sections 1 and 10)
  1. Pre-Order and Acceptance. Each pre-order you submit for a Product constitutes an offer to purchase that Product. Pre-orders are complete when you click “Complete Order” on our website (which also indicates or confirms your acceptance of these Terms). Completed pre-orders are subject to PHONOCUT’s acceptance and may be rejected at any time and for any reason at PHONOCUT’s discretion. If PHONOCUT rejects your offer, PHONOCUT will, as your sole and exclusive remedy and PHONOCUT’s sole and exclusive liability, refund the amount you paid as described in Section 4. If you have any questions, comments, or concerns regarding PHONOCUT’s pre-order acceptance policy, or if you believe that your pre-order was rejected in error, please contact PHONOCUT at http://PHONOCUT.com/contact. If PHONOCUT is not able to process your refund (for example, due to a cancelled credit card or closed PayPal account), then PHONOCUT will treat the amount that you paid as unclaimed property in accordance with applicable law.
  2. Eligibility. You must be at least 18 years old to offer to purchase a Product. By agreeing to these Terms, you represent and warrant to us that you are at least 18 years old. If you are offering to purchase a Product on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
  3. Payment. In order for your offer to be eligible for PHONOCUT’s acceptance, you must pay the amount for the Product elected by you as set forth on the PHONOCUT website by credit card or any other payment method designated on our website. Payments may be processed in Euros. PHONOCUT is not responsible for any fees charged by your credit card provider for currency exchange. Prices may be subject to change based on the currency conversion rate at the time of payment. If prices are converted, they are converted weekly by the Service MLVda every Sunday at 12:30pm PT. Conversion Service, date and time subject to change. Payment does not guarantee acceptance of your pre-order. You understand that PHONOCUT does not store payment and/or credit card information from you and that all payments are facilitated separately by a third party service. You understand that any and all credit card, debit card, bank, or other payment information supplied by you to pay for any pre-orders through the PHONOCUT website is transmitted directly to a third party service, which processes, stores, and otherwise uses such information in order to facilitate payments. You agree to ensure that all payment information supplied by you is accurate and correct and kept updated with the third party service at all times and that you are fully authorized to use such credit card and payment information and third party service for purposes of paying for your pre-order and any related expenses.
  4. Specifications; Refunds. We want you to be totally happy with the Product, but please be aware that the specifications for the Products may change prior to shipping. If you request a refund at any time before we accept your pre-order, we will process it promptly, and we will refund the full amount you paid. Once we have accepted your offer, the policy in the immediately preceding sentence will no longer apply. Instead, PHONOCUT’s refund policy and limited warranties will apply (“Refund Policy”). For further information on PHONOCUT’s limited warranties, please see Section 10 of these Terms.
  5. Shipping and Delay. During the pre-order period the Products are not ready for public delivery. A public shipping estimate was previously provided for pre-orders however as of August 31, 2021 there is no longer an estimated shipping date. The actual shipping date for any accepted pre-order will depend on a variety of factors including manufacturing schedule, the date of your pre-order, your completed payment of shipping and taxes, and when we accept your completed pre-order. Commencement of shipping is subject to change without notice to you. If we have not yet determined shipping charges for each country, then you will be required to pay all shipping charges for the location of the shipping address you provide. You must also pay any applicable tariff, import, customs, tax, and other charges that may apply to you. If shipping costs to the address that you provide for an accepted pre-order are higher than the shipping costs you paid at the time that you offered to purchase a Product, PHONOCUT may, in its sole discretion, require you to pay additional shipping fees or cancel your pre-order and refund the full amount you paid.
  6. Transfer of Risk and Title. Risk of loss of the Product passes to you on PHONOCUT’s delivery of the Product to the carrier, and you are responsible for any loss or damage to the Product from that point. Claims against a carrier for damage during shipping are your responsibility.
  7. Export Control. You acknowledge that Products may be subject to export control laws and other laws and regulations of the United States, Austria, Japan and other countries (as applicable), and that if PHONOCUT ships a Product to you, the Product may be impounded or otherwise confiscated by customs or other authorities. You are responsible for compliance with all applicable export control laws and regulations in your jurisdiction. You represent that you will not export, re-export, or transfer indirectly or directly any Product outside of the country in which you live that is contrary to the laws of your country.. Without limiting the immediately preceding sentence, you will not export, re-export, or transfer directly or indirectly any Product to: (i) an embargoed/terrorist supporting country, including Cuba, Iran, North Korea, Syria, Sudan, or any other such country as determined by the Austrian government; (ii) a person or entity barred by your country t on export activity lists, including, if the laws of the United States apply to you, persons or entities on the US Treasury Department Specially Designated National List, Entities List, and Denied Persons List; or (iii) any destination for an end use that is prohibited by applicable law. You will defend and hold PHONOCUT harmless against all claims, damages, or liability resulting from breach of the foregoing.
  8. Intellectual Property. PHONOCUT and its licensors own all intellectual property rights in the Products. If PHONOCUT accepts your pre-order for a Product, you will acquire no interest or rights in PHONOCUT’s intellectual property, and your use of the Product will be subject to the PHONOCUT Terms of Service and other additional license terms and restrictions that will be provided together with the Product. PHONOCUT reserves all rights in and to the Products not granted expressly in these Terms or other additional license terms.
  9. Limited Warranty and Disclaimer. We describe all policies related to our Limited Warranty in our WARRANTY, which is incorporated into these Terms by reference.
    EXCEPT AS EXPRESSLY PROVIDED IN OUR WARRANTY, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT GUARANTEED WARRANTY OF ANY KIND, AND PHONOCUT HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. PHONOCUT DOES NOT WARRANT THAT USE OF ANY PRODUCT WILL BE UNINTERRUPTED OR FREE OF ERRORS OR OTHER HARMFUL COMPONENTS, AND DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. PHONOCUT DOES NOT WARRANT THAT ANY PRODUCT COMPLIES WITH ALL APPLICABLE LAWS OR REGULATIONS IN ANY PARTICULAR JURISDICTION. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF THE PRODUCT.
  10. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL PHONOCUT BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER, ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF OR INABILITY TO USE ANY PRODUCT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF PHONOCUT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. You agree that if any lawsuit or court proceeding is permitted under these Terms, the aggregate liability of PHONOCUT and its affiliates and suppliers to you for all claims arising out of or related to these Terms or your use or inability to use a Product will not (other than as may be required by applicable law in cases involving personal injury) exceed the amount you paid to PHONOCUT for that Product. These limitations will apply even if the above stated remedy fails of its essential purpose. Each provision of these Terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks under these Terms between the parties. This allocation is an essential element of the basis of the bargain between the parties.
  11. Indemnity. You alone are responsible for the manner in which you use the Product. You shall defend, indemnify and hold harmless PHONOCUT and its officers, directors, employees, agents, affiliates, and suppliers (“Indemnities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your use of, or alleged use of, any Product; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
  12. Force Majeure. If PHONOCUT accepts your offer to purchase a Product, PHONOCUT will not be liable to you for any delay, including any delay due to an event beyond PHONOCUT’s reasonable control, such as an act of God, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood, epidemic, pandemic, or any other natural or man-made eventuality outside of PHONOCUT’s control.
  13. Privacy. We describe all policies related to our collection and use of data in our Privacy Policy, which is incorporated by reference. 
  14. Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we will notify you by email and you will be required to accept the modified Terms in order for your pre-order to remain valid. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication.
  15. Controlling Law and Severability. These Terms will be governed by and construed in accordance with the laws of Austria, excluding its conflict of law principles. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any portion of these Terms to be unenforceable, the remainder of these Terms will continue in full force and effect.
  16. Arbitration. All disputes or claims arising out of or in connection with these Terms, including disputes relating to its validity, breach, termination or nullity, shall be finally settled under the Rules of Arbitration (Vienna Rules) of the Vienna International Arbitral Centre (VIAC) of the Austrian Federal Economic Chamber by one or three arbitrators appointed in accordance with the said Rules. The language of the proceedings shall be English. The VIAC Rules and filing forms are available online at http://viac.eu/www.adr.org, by calling the VIACA at +43 5 90 900 4398, or by contacting PHONOCUT. YOU UNDERSTAND AND AGREE THAT OTHER THAN AS SET FORTH IN THESE TERMS, BY ENTERING INTO THESE TERMS, YOU AND PHONOCUT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY.
    1. Exceptions. Despite the provisions of Section 17(a), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) seek injunctive relief in a court of law; or (b) to file suit in a court of law to address an intellectual property infringement claim.
    2. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified mail or by reputable overnight courier (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). PHONOCUT’s address for Notice is: PHONOCUT Maschinen GmbH, Praterstrasse 70/1, Vienna 1020, AUSTRIA. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or PHONOCUT may commence an arbitration proceeding.
    3. No Class Actions. YOU AND PHONOCUT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and PHONOCUT agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
    4. Modifications to this Arbitration Provision. If PHONOCUT makes any future change to this arbitration provision, other than a change to PHONOCUT’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to PHONOCUT’s address for Notice, in which case your account with PHONOCUT will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
  17. Consent to Electronic Communications. By submitting your pre-order, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
  18. General. These Terms, together with the Privacy Policy and any other documents expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and PHONOCUT regarding your offer to purchase a Product and the other matters described in these Terms. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Upon termination of these Terms, any provision that by its nature or express terms should survive, will survive, including Sections 3, 4, and 7-17.
  19. Claims of Infringement. If you believe that any content appearing on the PHONOCUT website infringes your copyright rights, we want to hear from you. Please notify us via our form at http://PHONOCUT.com/dmca. PHONOCUT seeks to preserve any and all exemptions from liability that may be available under the copyright law but does not necessarily stipulate that it is a service provider as defined in USC section 512(c) or elsewhere.
  20. Contact Information. PHONOCUT Maschinen GmbH is located at Praterstrasse 70/1, Vienna 1020, AUSTRIA. You may contact us by sending correspondence to that address or at http://PHONOCUT.com/contact