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 (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 User by use of the Site, entering into this Agreement, or otherwise.
4. Access and Use of Site
5. User Submitted Content
By submitting, posting, sharing, or uploading to or on the Site any content (including, but not limited to, images, graphics, visual material, comments, feedback, links, text, music, audio or video files, or other content (“User Content”), User grants Beach Crasher and its affiliates, licensees, successors and/or assigns an irrevocable, perpetual, non-exclusive, transferable, royalty-free license (with the right to sublicense) to use, copy, modify, adapt, or reproduce such User Content. User represents and warrants that it is the sole owner of any User Content posted or submitted to the Site, or if not the sole owner User has (a) all permissions, consents, licenses, and approvals related to such User Content and (b) the right to disclose such User Content and grant to Beach Crasher and its affiliates the rights granted hereunder. Beach Crasher is not required to maintain the confidentiality of any User Content, even if the User Content is marked as confidential.
6. Third-Party Vendors
Beach Crasher may rely on third parties to provide products, services, and content in connection with the Site or this Agreement (individually a “Third-Party Vendor”), and Beach Crasher will have no responsibility or liability with respect to any Third-Party Vendor or any Third-Party Vendor’s products, services, or content. A Third-Party Vendor may impose additional terms upon User’s use of such products, services, and content, and User will be bound by such terms.
7. Third-Party Websites
The Site may contain links to, or may be accessible through links on, websites maintained by third parties (“Third Party Websites”). Beach Crasher is not responsible for any content contained on, or otherwise with respect to, Third Party Websites. No link from the Site to a Third Party Website, or from a Third Party Website to the Site, is an endorsement, sponsorship, or recommendation by Beach Crasher of such Third Party Website. Any links to or from any Third Party Websites are provided only for User’s convenience and Beach Crasher has no responsibility or liability to User arising from such links or Third Party Websites.
User shall indemnify, defend and hold harmless Beach Crasher from all costs, damages, expenses, fines, liabilities, losses, penalties and payments (including, but not limited to, fees and disbursements of counsel to Beach Crasher) resulting from, or relating to, (a) User’s failure to perform any obligation or assume any responsibility pursuant to this Agreement, (b) any warranty or representation made by User in this Agreement being untrue or misleading in any respect, (c) any unauthorized use of the Site by User, (d) any products, services or content of Third-Party Vendors, or (e) any User Content.
9. Warranty Disclaimer
THE SITE IS MADE AVAILABLE TO USER “AS IS” AND WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE IMMEDIATELY PRECEDING SENTENCE, USER DISCLAIMS All IMPLIED WARRANTIES (INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE).
10. Limitation of Liability
BEACH CRASHER WILL IN NO CASE BE LIABLE TO USER OR ANY THIRD PARTY WITH RESPECT TO THE SITE, THIS AGREEMENT OR OTHERWISE FOR ANY INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES. IN NO EVENT WILL ANY LIABILITY OF BEACH CRASHER WITH RESPECT TO THE SITE, THIS AGREEMENT OR OTHERWISE EXCEED THE LESSER OF (A) ALL DIRECT DAMAGES ACTUALLY INCURRED BY USER OR (B) $100.00. 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.
Whenever possible, each provision of this Agreement will 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.
Beach Crasher may revise any provision of this Agreement from time to time by (a) posting the revised provision so that it is accessible to User on the Site, (b) notifying User of the revised provision in an email message or other notice sent to User at the address for User in Beach Crasher’s records. Any such revision will be effective immediately upon the earlier of such posting, sending such email message, or five days after such notice is placed in regular mail, with postage prepaid, as set forth in this Section. User is responsible for periodically checking this Agreement on the Site for revisions to this Agreement. Any other revision to this Agreement must be in a writing signed by Beach Crasher and User.
User must send all written notices to Beach Crasher relating to the Site or this Agreement by either regular mail at 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 User relating to the Site or this Agreement through e-mail, regular mail or a general posting on the Site. Any such notice from Beach Crasher will be effective (a) immediately upon Beach Crasher’s sending such notice to the address it has in its records for User 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 User, with postage prepaid, in the case of regular mail, and (c) immediately upon User’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 the party granting such waiver, and specifically referring to each such right or remedy being waived.
16. 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.
User represents and warrants to Beach Crasher that User (1) has carefully read this Agreement, (2) is entering into this Agreement on User’s own behalf, and (3) has sufficient capacity to enter into this Agreement and bind User.
Dated: June 26, 2020