Subscription Terms of Service

Effective Date

These terms are effective July 15, 2020

The Beachwaver Co.  (“Beachwaver,” “we,” “us,” “our”) provides its subscription services (described below) to you through its website located at www.Beachwaver.com (the “Site”) and through its related services (collectively, such services, including any new features and applications, and the Site, the “Service(s)”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time If we do this, we will post the change(s) on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Services user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.

In addition, when using certain services, you will be subject to any additional terms applicable to such services that may be posted on the Service from time to time, including, without limitation, the Privacy Policy located at www.Beachwaver.com/privacy. All such terms are hereby incorporated by reference into these Terms of Service.

THESE TERMS OF SERVICE INCLUDE A CLASS ACTION WAIVER AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. DETAILS ARE SET FORTH BELOW IN THESE TERMS OF SERVICE.

 

Access and Use of the Service

Services Description: The Service is designed to provide women and men with great hair care supplies  (“items”) on a recurring (“subscription”) basis (each shipment of items, a “Subscription Delivery”). Once you create an account and subscribe you will become a “Subscriber.” For more details about the Subscription Service, please see www.Beachwaver.com.  Each Subscription Delivery that we ship to you shall be non-returnable and non-refundable.  There are no long-term ordering commitments, however, the Initial Term of the Service is three (3) Subscription Deliveries. You may suspend your Service at any time after the Initial Term (or at any time if required by law) by contacting customer support at customerservice@beachwaver.com. To protect you and Beachwaver from fraud, Beachwaver may contact you from time to time to verify your identity prior to sending you a Subscription Delivery. You may be asked to provide basic information about yourself to verify your Subscription account. Upon confirmation of your identity, Beachwaver will send you a Subscription Delivery. Beachwaver reserves the rights to terminate your subscription, to refuse any and all current or future use of the Site or the Service, and not to do business with any Subscriber or anyone else, each as Beachwaver deems appropriate in its sole discretion for any reason.

Return Policy; Shipping: You may not return any item from a particular Subscription Delivery you receive through the Subscription Service unless the product is defective or damaged in delivery (in accordance with the instructions below and those provided with such Subscription Delivery).  Any authorized return must be commenced within five (5) days after it is delivered. You are responsible for return shipping costs.  All items you receive through the Service will be shipped by a third-party carrier.

Your Registration Obligations: You may be required to register with Beachwaver in order to access and use certain features of the Service. If you choose to register for the Service, you agree to provide and maintain true, accurate, current and complete information about yourself as prompted by the Service’s registration form. Registration data and certain other information about you are governed by our Privacy Policy. If you are under 18 years of age, you are not authorized to use the Service, with or without registering.

Registered Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Beachwaver of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Beachwaver will not be liable for any loss or damage arising from your failure to comply with this Section.

Modifications to Service: Beachwaver reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Beachwaver will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

General Practices Regarding Use and Storage: You acknowledge that Beachwaver may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Beachwaver’s servers on your behalf. You agree that Beachwaver has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Beachwaver reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Beachwaver reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

Mobile Services: The Service includes certain services that are available via a mobile device, including the ability to browse the Service and the Site from a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, accessing or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.

 

 

Indemnity and Release

You agree to release, indemnify and hold Beachwaver and its affiliates and their officers, employees, directors and agent harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

 

Disclaimer of Warranties

Beachwaver makes no warranty that (i) the service will meet your requirements, (ii) the service will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the service will be accurate or reliable, or (iv) the quality of any clothes, products, services, information, or other material purchased or obtained by you through the service will meet your expectations.

 

Limitation of Liability

You expressly understand and agree that Beachwaver will not be liable for any indirect, incidental, special, consequential, exemplary damages, or damages for loss of profits including but not limited to, damages for loss of goodwill, use, data or other intangible losses (even if Beachwaver has been advised of the possibility of such damages), whether based on contract, tort, negligence, strict liability or otherwise, resulting from: (i) the use or the inability to use the service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the service; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the service; or (v) any other matter relating to the service. In no event will Beachwaver’s total liability to you for all damages, losses or causes of action exceed the amount you have paid Beachwaver in the last six (6) months, or, if greater, one hundred dollars ($100).

Certain provisions of the foregoing paragraph may not apply to consumers within the State of New Jersey or in other jurisdictions where prohibited by law. If you are dissatisfied with any portion of the service or with these terms of service, your sole and exclusive remedy is to discontinue use of the service.

 

Dispute Resolution By Binding Arbitration

PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.

Most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at customerservice@beachwaver.com. In the unlikely event that our customer care team is unable to resolve a complaint you may have (or if Beachwaver has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration, mediation, or small claims court instead of in courts of general jurisdiction. Arbitration, which is often cheaper, faster and less formal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury. Arbitrators can award the same damages and relief that a court can award. Also, in any arbitration under this arbitration provision in which you seek less than $75,000 in damages, Beachwaver will pay reasonable attorneys’ fees should you prevail. Beachwaver will not seek attorneys’ fees from you. However, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of attorneys’ fees will be governed by the AAA Rules (as defined below). Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted.

Arbitration Agreement

Beachwaver and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:

• claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; 

• claims that arose before this or any prior agreements (including, but not limited to, claims relating to advertising); 

• claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and 

• claims that may arise after the termination of this Terms of Service. 

References to “Beachwaver", "you", and "us" include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or devices under this or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Beachwaver are each waiving the right to a trial by jury or to participate in a class action. This Terms of Service evidences a transaction in the interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Terms of Service.

A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Beachwaver should be addressed to 3800 Hawthorne Ct., Waukegan, IL  60087 ("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If Beachwaver and you do not reach an agreement to resolve the claim within sixty (60) calendar days after the Notice is received, you or Beachwaver may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Beachwaver or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Beachwaver is entitled.

The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association (“AAA”), as modified by this Terms of Service, and will be administered by the AAA. The AAA Rules are available online at adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this Terms of Service. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of the arbitration provision. Unless Beachwaver and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Beachwaver will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the AAA Rules. However, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.

The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees and expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

The arbitrator may award declaratory or injunctive 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. YOU AND BEACHWAVER 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 Beachwaver 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. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.

Notwithstanding any provision in this Terms of Service to the contrary, we agree that if Beachwaver makes any future change to this arbitration provision (other than a change to the Notice Address) while you are a user of the Beachwaver Web Site, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.

 

Termination
You agree that Beachwaver, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Beachwaver believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Beachwaver may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Beachwaver may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Beachwaver will not be liable to you or any third-party for any termination of your access to the Service.

 

User Disputes
You agree that you are solely responsible for your interactions with any other user in connection with the Service and Beachwaver will have no liability or responsibility with respect thereto. Beachwaver reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.

 

General
These Terms of Service constitute the entire agreement between you and Beachwaver and govern your use of the Service, superseding any prior agreements between you and Beachwaver with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third-party content or third-party software. These Terms of Service will be governed by the laws of the State of Illinois without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Beachwaver agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Chicago, Illinois. The failure of Beachwaver to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.

 

Your Privacy

At Beachwaver, we respect the privacy of our users. For details please see our Privacy Policy. By using the Service, you consent to our collection and use of personal data as outlined therein.

 

Sales Tax

State & Local Sales Taxes

Taxes charged to your credit card will be calculated based on the applicable state and local sales taxes when your order is billed.

The terms contained herein are subject to change as the taxation of online transactions is continually evolving. Beachwaver strives to comply with state and local tax laws as they exist currently, and continues to monitor and update its taxation policies as those laws change.  Beachwaver does not currently collect sales or use taxes in all states. For states imposing sales or use taxes, your purchase may be subject to use tax unless it is specifically exempt from taxation. Your purchase is not exempt merely because it is made over the Internet or by other remote means. Many states require purchasers to file a sales/use tax return at the end of the year reporting all of the taxable purchases that were not taxed and to pay tax on those purchases. Details of how to report these taxes may be found at the websites of your respective taxing authorities.

 

Notice for California Users

Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. Beachwaver may be contacted in writing at 3800 Hawthorne Ct., Waukegan, IL 60087 or by telephone at (224) 222-0428.

 

Questions? Concerns? Suggestions?

Please contact us at customerservice@beachwaver.com to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.