This Agreement is between Beach Crasher Inc. (“Beach Crasher”) and the individual (“Customer”) purchasing a product (including but not limited to t-shirts, sweatshirts, hats, bike racks, coolers, umbrellas, or any other good) sold by Beach Crasher (“Product” or “Products”) on www.beachcrasher.com (the “Site”).
Customer will be legally bound by this Agreement and should read it carefully. When prompted, Customer must check the appropriate box to accept the terms of this Agreement and purchase a Product. If Customer does not indicate his/her acceptance of these terms by checking the appropriate box, Customer will not be able to purchase the selected Product.
All orders for a Product received by Beach Crashers through the Site are subject to acceptance by Beach Crashers and the terms of this Agreement as well as any terms set forth on the Site (including, but not limited to, price). Beach Crasher may reject any such order for any reason, in its sole discretion. After Customer submits an order, Customer will receive an email message that such order has been received by Beach Crasher. Any such order is deemed accepted when Customer receives a second email message from Beach Crasher confirming acceptance of, or shipping information for, such order. If any such order relates to a Product that is unavailable or is otherwise rejected, Customer will be so notified in an email message.
2. Personal Information
In submitting an order for a Product through the Site that is accepted by Beach Crasher, Customer purchases from Beach Crasher the quantities of such Product set forth in Customer’s order, subject to the terms of this Agreement. Customer must provide Beach Crasher with complete and accurate information in submitting an order. Any Product sold on the Site is intended only for personal use (including a gift to a third party), and is not authorized for resale or other commercial purposes.
Customer must pay for a Product, plus all other amounts payable hereunder, by using a valid credit card or other payment option offered through the Site that Customer is authorized to use. All information provided by Customer to Beach Crasher (or one or more of its Third-Party Vendors) regarding such credit card must be complete and accurate in all respects.
In submitting an order for a Product, Customer will have options for shipping, and Customer will be charged for shipping as set forth on the Site. All risk of loss to a Product being shipped by Beach Crasher transfers to Customer upon Beach Crasher’s delivering such Product to an independent carrier at the place of business of Beach Crasher (or Beach Crasher’s designee). Any dates posted on the Site for shipping or receiving a Product are only estimates and Beach Crasher is not responsible for any failure to ship such Product, or any failure of Customer to receive such Product, on or before such dates.
6. Return Policy
If Customer is not satisfied with any Product ordered by Customer through the Site, Customer may return such Product to Beach Crasher for any reason within 30 days after such Product is shipped to Customer by Beach Crasher (or Beach Crasher’s designee) for a complete refund of the price plus taxes paid by Customer (not including any charges for shipping). To receive a full refund, all Products must be unworn and in the same condition it was received. If any Product ordered by Customer through the Site does not satisfy the warranty set forth in Section 13 in any material respect, Customer may return such Product for replacement, in the sole discretion of Beach Crasher; provided, however, that Customer must first receive from Beach Crasher a “return merchandise authorization” in writing (including email) from Beach Crasher.
In submitting an order through the Site for a Product, Customer may establish an account with Beach Crasher that is accessible using a user name and password selected by Customer. Customer’s user name and password must comply with whatever protocol is from time-to-time established by Beach Crasher for user names and passwords, and must not be disclosed by Customer to third parties. Customer (a) is responsible for maintaining the confidentiality of Customer’s user name and password, and (b) must immediately notify Beach Crasher in writing of any loss, or any unauthorized access, disclosure or use, of Customer’s user name or password. Beach Crasher will not have any liability to Customer or any third party arising from Customer’s failure to keep Customer’s user name or password confidential and may at any time, in its sole discretion and without notice to Customer, terminate or temporarily disable Customer’s access to such account. In addition, Beach Crasher may rely on any use of Customer’s user name or password, whether by Customer or any third party, as having been authorized by Customer, unless (a) Customer previously notified Beach Crasher in writing of any loss, or any unauthorized access, disclosure or use, of Customer’s user name or password, (b) Beach Crasher has had a reasonable opportunity of not less than five days to act on such notice, and (c) Beach Crasher’s acting on such notice would have clearly avoided any third-party use of such account that was not authorized by Customer. All orders submitted by Customer while logged into Customer’s account will be associated with such account.
All right, title and interest in any content (including, but not limited to, all logos, artwork, graphics, icons, insignia, names, marks, and intellectual property) made available through the Site or associated with a Product (collectively “Content”) belongs to, or is licensed by, Beach Crasher, unless stated otherwise in writing by Beach Crasher. No licenses or rights to any Content are granted to Customer by use of the Site, purchasing a Product, entering into this Agreement, or otherwise by implication.
9. Third-Party Vendors
Beach Crasher may rely on Third-Party Vendors, and Beach Crasher will have no responsibility or liability with respect to Third-Party Vendors or their products, services, or content. ThirdParty Vendors may impose additional terms upon Customer’s use of such products, services, and content, and Customer will be bound by such terms just as though they are set forth in this Agreement in their entirety.
10. Third-Party Sites
The Site may contain links to other websites that are not maintained by Beach Crasher. Beach Crasher is not responsible for any content contained on such other websites or otherwise with respect to such other websites. No link from the Site to another website, or from another website to the Site, is an endorsement, sponsorship, or recommendation by Beach Crasher of such other website and the link is provided only for Customer’s convenience. Beach Crasher will have no responsibility or liability to Customer or any third party arising from any link between the Site and another website.
All sales and use taxes, plus any other federal, state, county or local duty, surcharge, tax, tariff or other government-imposed fee (except for any tax on the income of Beach Crasher) assessed or payable upon an order for a Product or otherwise relating to this Agreement shall be payable by Customer, even if such government-imposed fee is not collected by Beach Crasher at the time an order for a Product is submitted to Beach Crasher.
Customer shall indemnify, defend and hold harmless Beach Crasher from all costs, damages, expenses, fines, liabilities, losses, penalties and other payments (including, but not limited to, fees and disbursements of counsel to Beach Crasher) resulting from, or relating to, (a) Customer’s failure to perform any obligation or assume any responsibility pursuant to this Agreement, (b) any warranty or representation made by Customer in this Agreement being untrue or misleading in any respect, (c) any unauthorized use of a Product by Customer, (d) any unauthorized use by a third-party of Customer’s account, user name or password (except as set forth in Section 7), (e) any products, services or content of Third-Party Vendors, or (f) Customer’s use of the Site or a Product or Customer’s purchase of a Product.
Beach Crasher warrants only to Customer that for a period of fourteen (14) days from the date of shipment by Breach Crasher (or Beach Crasher’s designee) of a Product, such Product will be free from material defects in material and workmanship. If any Product contains a material defect within the warranty period, Customer may return such Product to Beach Crasher as set forth in Section 6 for replacement. After a Product is replaced by Beach Crasher, the replacement Product will continue to be covered by such warranty only for the balance of the original warranty period. If for any reason Beach Crasher cannot, in its sole discretion, replace a Product Beach Crasher will refund to Customer the price plus taxes paid by Customer for such Product (not including any charges for shipping).
EXCEPT AS EXPRESSLY STATED IN THE IMMEDIATELY PRECEDING PARAGRAPH, A PRODUCT IS MADE AVAILABLE TO CUSTOMER “AS IS” AND WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to Customer.
14. Limitation of Liability
IN NO EVENT SHALL BEACH CRASHER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY WITH RESPECT TO A PRODUCT, THE SITE, THIS AGREEMENT OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES. IN NO EVENT WILL ANY LIABILITY OF BEACH CRASHER WITH RESPECT TO A PRODUCT, THE SITE, THIS AGREEMENT OR OTHERWISE EXCEED THE LESSER OF (A) ALL DIRECT DAMAGES ACTUALLY INCURRED BY CUSTOMER OR (B) THE TOTAL AMOUNT PAID BY CUSTOMER TO BEACH CRASHER FOR A PRODUCT (NOT INCLUDING ANY CHARGES FOR SHIPPING). THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF ANY THEORY OF LIABILITY (INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT), EVEN IF THE POSSIBILITY OF ANY DAMAGES SHOULD HAVE BEEN FORESEEN BY BEACH CRASHER, AND EVEN IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
Some jurisdictions do not allow the limitations or exclusions of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to Customer.
Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If, however, any such provision is prohibited by or invalid under such law, it will be deemed modified to conform to the minimum requirements of such law, or if for any reason it is not deemed so modified, it will be prohibited or invalid only to the extent of such prohibition or invalidity without the remainder of such provision, or any other provision of this Agreement, being prohibited or invalid.
This Agreement will not be amended by any conduct pursued by the parties or any third party, but may only be amended in a writing signed by Beach Crasher and Customer or as otherwise set forth herein. Any terms (including, but not limited to, price) relating to an order for a Product through the Site after the effective date of this Agreement may be unilaterally amended by Beach Crasher, in its sole discretion, at any time and such amendment will apply to all orders submitted by Customer through the Site after the date of such amendment.
Customer must send all written notices to Beach Crasher relating to a Product or this Agreement by either regular mail to Beach Crasher Inc., Attn: Robert Peter, 2117 Buffalo Road #255, Rochester, NY 14624, or by e-mail to email@example.com. Any such notice will be effective upon actual receipt by Beach Crasher. Beach Crasher may send notices to Customer through email, regular mail, or a general posting on the Site. Any such notice will be effective (a) immediately upon Beach Crasher’s sending such notice to the address it has in its records for Customer in the case of e-mail, (b) five days after Beach Crasher’s sending such notice to the address it has in its records for Customer in the case of regular mail, and (c) immediately upon Customer’s entering the Site after such notice is posted on the Site.
No failure of Beach Crasher to exercise, and no delay by Beach Crasher in exercising, any right or remedy under this Agreement shall be a waiver of such right or remedy. No waiver of any such right or remedy shall be effective unless made in a writing signed by Beach Crasher, and specifically referring to each such right or remedy being waived.
19. Governing Law
This Agreement will be governed by and construed in accordance with the laws of the State of New York and controlling United States federal law, notwithstanding any conflict of laws provisions or doctrines of such state or any other jurisdiction to the contrary. Customer agrees to submit to the jurisdiction of the courts situated in Erie and Monroe Counties, New York with respect to any claim, cause of action or dispute related to or involving the Site, Customer’s access or use thereof, this Agreement, and/or Customer’s purchase of a Product.
20. Third-Party Beneficiaries
There are no third-party beneficiaries of this Agreement, and no provision of this Agreement can be enforced or relied upon by any third party.
Customer represents and warrants to Beach Crasher that Customer (1) has carefully read this Agreement, (2) is entering into this Agreement on Customer’s own behalf, and (3) has sufficient capacity to enter into this Agreement.