AGREEMENT BETWEEN USER AND THE BEACHWAVER CO. UPDATED 11/13/2017
Beachwaver.com (“site”, “website”) is operated by the Beachwaver Co. an Illinois corporation (“the Company”, “us” or “we”).
BY USING THIS WEBSITE, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS:
The goods, services, and information provided on this website are offered to you conditioned on your acceptance without modification of the following terms, conditions, and notices (the “Agreement”). Your use of the website constitutes your agreement to the Agreement. When you use this website, you agree that both your access to the site and your use of it are subject to all applicable laws, subject to the terms and conditions in this legal notice, any of which may change at any time without notice.
This Agreement constitutes the entire agreement and understanding between you and the Company and governs your use of the website and the services, superseding any prior agreements between you and the Company. The section titles in this Agreement are for convenience purposes only and have no legal or contractual effect. The Company retains the right to modify this policy at any time. Your use of the site constitutes your acceptance of the modifications.
USER GENERATED CONTENT
In the event of any problem with this website or any content, you agree that your sole remedy is to cease using this website. In the event of any problem with the products or services that you have purchased on or through this website, you agree that your sole remedy, if any, is from the manufacturer of such products or supplier of such services, in accordance with such manufacturer's or supplier's warranty, or to seek a return and refund for such product or services in accordance with the returns and refunds policies posted on this website. Except as prohibited by applicable New Jersey law, in no event shall the Company’s total liability to you for all damages, losses, and causes of action whether in contract, tort (including, but not limited to, negligence), or otherwise exceed the greater of (a) fifty dollars ($50.00) or (b) the value of your purchase on the website.
CHOICE OF LAW
Resolution of disputes shall be conducted in accordance with the laws of the state of Illinois. By using this Website, you agree to submit to the personal and exclusive jurisdiction of the federal and state courts located in Cook County, Illinois and waive any jurisdictional, venue or inconvenient forum objections.
Any dispute or claim relating in any way to your use of any service provided on this website, or to any product or service provided by the Company will be resolved by binding arbitration, rather than in court, except for qualified claims that may be brought in small claims court. Federal Arbitration Act and federal arbitration laws apply to this agreement. There is no judge or jury in arbitration and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Conditions of Use as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, shown below. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, the Company will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live, or at another mutually agreed location.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
If you have a subpoena to serve on the Company, please note that we do not accept service via e-mail or fax and will not respond to the subpoena transmitted via e-mail or fax. All subpoenas must be properly served on the Company, by mailing the subpoena to our registered agent.REGISTERED AGENT:
We grant to you a limited personal, non-exclusive and non-transferable right and license to access the website and use the services offered thereon. Unless otherwise specified in writing, the website and services are for your personal and non-commercial use. You may not use the website and/or the services for any purpose that is unlawful or prohibited by these terms and conditions.
DISCLOSURE OF PERSONAL INFORMATION
We highly value intellectual property in all of its forms. All text, graphics, logos, button icons, images, audio clips, digital downloads, and data compilations — both individually and as they are compiled on the site are the property of the Company, or our vendors and are protected by United States and International copyright laws. If you own the rights to an image or other copyrighted information shown on our site, please contact us at firstname.lastname@example.org.
The trademarks of the Company and our vendors may not be used without written permission. Trademarks include but are not limited to the Sarah Potempa, Inc. name and any associated logos, the Beachwaver Co. name and any associated logos, other graphics, logos, page headers, button icons, scripts, and service names of Sarah Potempa, Inc. products, services, and programs, and those of our vendors. All other trademarks that appear on this site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by the Company or our vendors.
Our goal is to provide complete, accurate, and up-to-date information on our website. When possible, we fact check all our information and make every effort to ensure that we are accurately reporting information. Unfortunately, it is not possible to ensure that any website is completely free of human or technical errors. This site may contain typographical mistakes, inaccuracies, or omissions. Additionally, some information may not be complete or current. If you notice that we have inadvertently mislabeled or used an image or likeness, please contact us and we will make every effort to correct the issue. Much of the information contained on the website is merely the opinion of the bloggers. Except as prohibited by applicable New Jersey law, we make no representation as to the completeness, accuracy, or currency of any information provided on this website.
DISCLAIMER OF LIABILITY
We make no representations or warranties of any kind, whether express or implied, with respect to this website, its content, or the information available on or through it.
Except as prohibited by applicable New Jersey law, the information, materials and services provided on or through this website are provided “as is” and “as available” without any warranties of any kind including warranties of merchantability, fitness for a particular purpose, or non-infringement of intellectual property. Except as prohibited by applicable New Jersey law, neither the company, nor any of its respective affiliates (i) warrants the accuracy or completeness of the information, materials or services provided on or through the website or (ii) makes any commitments or assumes any duty to update such information, materials or services. You expressly agree that your use of this website is at your sole risk.
Except as prohibited by applicable New Jersey law, we disclaim all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose with respect to the products and services listed or purchased on or through this website. Without limiting the generality of the foregoing, we hereby expressly disclaim all liability for product defect or failure, claims that are due to normal wear, product misuse, abuse, product modification, improper product selection, non-compliance with any codes, or misappropriation, except as prohibited by applicable New Jersey law. We do not warrant that the services, information, content, materials, products, or other services included on or otherwise made available to you through the website, servers, e-mail, or electronic communications sent from us are free of viruses or other harmful components. We will not be liable for any damages of any kind arising from the use of any service, or from any information, content, materials, products, or other services included on or otherwise made available to you through any service, including, but not limited to direct, indirect, incidental, punitive, and consequential damages, unless otherwise specified in writing.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Except as prohibited by applicable New Jersey law, you agree to defend, indemnify and hold the Company and any affiliated company or individual harmless from any and all liabilities, costs, and expenses, including reasonable attorneys' fees, related to any violation of these terms by you or your authorized users, or in connection with the use of the website or the Internet or your purchases or the placement or transmission of any message or information on this website by you or your authorized users or your violation of any law or the rights of a third party.
Except as prohibited by applicable New Jersey law, in no event will the Company or any of their respective officers, directors, employees, shareholders, affiliates, agents, successors or assigns, nor any party involved in the creation, production or transmission of this website, be liable to you or anyone else for any indirect, special, punitive, incidental or consequential damages (including, without limitation, those resulting from lost profits, lost data or business interruption) arising out of the use, inability to use, or the results of use of the website, any websites linked to this website, and its Content, whether based on warranty, contract, tort or any other legal theory and whether or not advised of the possibility of such damages. Please refer to your local laws for any such prohibitions. NEW JERSEY RESIDENTS: With respect to these terms, the provision concerning the exclusion or limitation of certain damages is not applicable in New Jersey with respect to statutory damages, punitive damages, loss of data, and loss of or damage to property.
LEGAL NOTICE TO NEW JERSEY RESIDENTS
The “Truth-in-Consumer Contract, Warranty and Notice Act,” N.J. Stat. § 56:12-14 et seq. (“TCCWNA”) may provide you additional rights not specified here. No provision in these terms shall apply to any consumer in New Jersey if the provision limits redress for/under: (i) the Company’s tortious actions (e.g., negligence, failure to exercise a basic standard of care, failure to avoid creating an unreasonable risk of harm); (ii) the New Jersey Products Liability Act, N.J.S.A. 2A:58C-1, et seq. (i.e., the statutorily imposed duty to refrain from manufacturing and selling dangerous products, with the possibility of punitive damages for violations thereof); (iii) the New Jersey Punitive Damages Act, N.J.S.A. 2A:15-5.9, et seq. (i.e., the statutory right to pursue punitive damages in the event of harm caused by actual malice, wanton and willful disregard, reckless indifference); (iv) the New Jersey Uniform Commercial Code (i.e., a comprehensive statutory regime governing the rights and duties of buyers and sellers with respect to contracts for the sale of goods, with the possibility of damages for economic and property harm); and (v) the Company’s failure to reasonably protect against harm arising from certain criminal acts of third parties (e.g., computer hacking and identity theft, as regulated by the Federal Trade Commission and the Federal Communications Commission, and as governed by the New Jersey Identity Theft Protection Act, N.J.S.A.56:8-161, et seq., and the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-3, et seq.). With respect to these terms, the provision concerning the exclusion or limitation of certain damages is not applicable in New Jersey with respect to statutory damages, punitive damages, loss of data, and loss of or damage to property.
USER-SUBMITTED REVIEWS, COMMENTS, AND THIRD PARTY INFORMATION
The Company shall not be responsible or liable for any content posted by you or any third party. This includes threatening, defamatory, obscene or illegal content or conduct of any other party or any infringement of another’s rights, including intellectual property rights. We reserve the right but not the obligation to monitor, edit, or remove any activity or content.
The sections of the site, including but not limited to how-to videos and step by step procedures to recreate hairstyles are for entertainment purposes only. You specifically agree that we will not be liable for any damages whatsoever arising out of information obtained in these sections and your attempts to utilize said information.
LINKS TO THIRD PARTY SITES
Any dealings with third parties (including advertisers) included within the website or services or participation in promotions offered by third parties, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and the advertiser or other third party. The Company shall not be responsible or liable for any part of any such dealings or promotions.
NO UNLAWFUL OR PROHIBITED USE
As a condition of your use of the website and services, you will not use the website or services for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the website or services in any manner which could damage, disable, overburden, or impair the website or any of the service(s) (or the network(s) connected to the website and service(s)) or interfere with any other party’s use and enjoyment of the website and service(s). You may not attempt to gain unauthorized access to the website or any service, other accounts, computer systems or networks connected to the website or any service through hacking, password mining, or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the website or services. In addition, you shall not register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for the website or any service if you are not expressly authorized by such party to do so.
If any provision of this Agreement is found by a court of competent jurisdiction to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severed herefrom and shall not affect the validity and enforceability of any remaining provisions. This Agreement is not assignable, transferable or sub-licensable by you except with our prior written consent. However, we may assign this Agreement to any third party whom we choose without your consent. No waiver by the Company of any breach or default hereunder shall be deemed a waiver of any preceding or subsequent breach or default.
Use of the website and services is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph. You agree that no joint venture, partnership, employment, or agency relationship exists between you and the Company as the Company makes no representation or warranty that the content and materials on the website and/or the services are appropriate or available for use in locations outside the United States. Those who choose to access the website or use the services from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent applicable. The Company reserves the right, at any time in our sole discretion, to limit the availability and accessibility of the website and/or the services to any person, geographic area, or jurisdiction we so desire, and to limit the quantities of any such service or products that we provide.
The Company reserves the right to terminate your access to the website if we determine that you are violating the terms of this Agreement.