Effective Date: October 27, 2016
This Agreement applies to all Site visitors and users of the Site or BeachCandy Swimwear Services. If you don’t agree with any term or condition in this Agreement, please don’t use the Site or any BeachCandy Swimwear Service. If you have any questions, please refer to the Site’s FAQs at https://beachcandyswimwear.com/faq/. If you don’t find your answer there, email us at firstname.lastname@example.org.
WELCOME TO BEACHCANDY SWIMWEAR!
BeachCandy Swimwear operates an online swimwear brand on the Site and on social networking platforms controlled by BeachCandy Swimwear such as, but not limited to, the BeachCandy Swimwear Facebook® page, the BeachCandy Swimwear Instagram® and Pinterest® boards and the BeachCandy Swimwear Twitter® feed (collectively, the “BeachCandy Swimwear Online Community”). Our community is a place for you to satisfy all of your swimwear dreams.
If you take the Custom Quiz on our Site and register a BeachCandy Swimwear account, you become a “BeachCandy Babe”. There is no payment required to become a “BeachCandy Babe”.
You are not required to use social media at all to become a BeachCandy Babe. We hope you share your unique swimwear insights and experiences with other BeachCandy Babes in the BeachCandy Swimwear Online Community, but you are not required to do so.
PRODUCT MANUFACTURE AND INGREDIENTS
We manufacture all of the BeachCandy Swimwear products we send to you, locally in Southern California. Outside branded products are manufactured by their respective brands. You should read and strictly follow all product labels, packaging inserts and instructions, and manufacturer directions regarding care and wash of any item. BeachCandy Swimwear Care Instructions can be found at https://beachcandyswimwear.com/return-policy-and-care-instructions/.
Eligibility to Use the Site and BeachCandy Swimwear Services
General: You may access the Site from anywhere in the world without incurring any fees or becoming a BeachCandy Babe.
Fees: It’s free to use the Site!
Age: You are not authorized to access or use the Site or any BeachCandy Swimwear Service if you are under 13 years old. Individuals under 18 years old must at all times use the Site and BeachCandy Swimwear Services only in conjunction with and under the supervision of a parent, or the supervision of a legal guardian who is at least 18 years old. In all cases, that parent or legal guardian is the Site user (or Site account holder) and will be responsible for any and all use of the Site and BeachCandy Swimwear Services by the individual under 18.
BeachCandy Swimwear’s Right to Revoke, Suspend, or Restrict Eligibility: BeachCandy Swimwear reserves the right, in its sole discretion, to cancel unconfirmed or inactive accounts. BeachCandy Swimwear may, in its sole discretion, for any reason, at any time, revoke, suspend, or restrict your access to the Site or any BeachCandy Swimwear Service. If BeachCandy Swimwear bans you from the Site or any BeachCandy Swimwear Service, you may not return to the Site or use that BeachCandy Swimwear Service for any reason or in any manner including with a new username or identity. In the event that you return, or attempt to return, to the Site or use the BeachCandy Swimwear Service after you’ve been banned, you will be deemed to have breached this Agreement, and BeachCandy Swimwear reserves the right to pursue all rights and remedies available at law or in equity with respect to such breach.
Member Account, Password, and Security: You are responsible for maintaining the confidentiality of your password and account, if any. You agree to: (a) immediately notify BeachCandy Swimwear of any unauthorized use of your password or account or any other security breach, and (b) ensure that you exit from your account at the end of each Site session. BeachCandy Swimwear will not be liable for any loss or damage arising from your failure to comply with this Section.
Account Transfer Prohibited: You may not transfer or sell your BeachCandy Swimwear account or username to any other party. You are fully responsible for all activity of your BeachCandy Swimwear account and username.
General Practices Regarding Site Use and Storage: You acknowledge that BeachCandy Swimwear may establish general practices and limits concerning Site use and storage. You agree that BeachCandy Swimwear has no responsibility or liability for the deletion, failure to delete or failure to store any reviews, product designs, data or other content the Site maintains or transmits. You acknowledge that BeachCandy Swimwear may, in its sole discretion, change these general practices and limits at any time, with or without notice to you.
You may access and view the Site Content and make single copies or prints of the Site Content at your own sole risk, only for your personal, non-commercial, and internal use.
User Content: You must own all User Content you submit to any BeachCandy Swimwear Online Community or you must have the copyright owner’s written permission to use it. You alone are responsible for the content and consequences of each of your activities in the BeachCandy Swimwear Online Community and you submit User Content at your own risk.
BeachCandy Swimwear does not claim ownership rights in your User Content. When you submit User Content to any BeachCandy Swimwear Online Community you grant us a license to use such content, but you retain ownership.
Re-Posting User Content: It’s possible for an outside website or third party to re-post your User Content. You agree to hold BeachCandy Swimwear harmless for any dispute concerning such re-posting. BeachCandy Swimwear assumes no responsibility for any third party’s intellectual property infringement of User Content.
Trademarks: The trademarks, logos, service marks, and trade names (collectively the “Trademarks”) displayed in the BeachCandy Swimwear Online Community or through the BeachCandy Swimwear Services are registered and unregistered Trademarks of ours and others and may not be used in connection with products and/or services that are not related to, associated with, or sponsored by their rights holders, or that are likely to cause customer confusion, or in any manner that disparages or discredits the rights holders. All Trademarks not owned by us that appear in the BeachCandy Swimwear Online Community or through the BeachCandy Swimwear Services, if any, are the property of their respective owners. Nothing contained on the Site grants, by implication, estoppel, or otherwise, or should be construed as granting, any license or right to use any of the Trademarks displayed in the BeachCandy Swimwear Online Community without our written permission or that of the third-party rights holder.
Prohibited User Conduct: You agree that while using the Site and BeachCandy Swimwear Services, you shall not: (1) submit any content to the Site that is false, defamatory, objectionable or otherwise illegal; (2) impersonate any person or entity, whether actual or fictitious, including anyone from BeachCandy Swimwear, its affiliates, or another BeachCandy Babe; (3) misrepresent your affiliation with any third party; (4) post or republish third party advertising on any part of the BeachCandy Swimwear Online Community; (5) attempt to gain unauthorized access to other computer systems through the Site; or (6) use the Site or BeachCandy Swimwear Services in any unlawful, harassing, or intimidating manner, or in any manner that harms us or anyone else, as determined in our sole discretion.
Information on the BeachCandy Swimwear Online Community: We control and operate the Site from the United States. BeachCandy Swimwear does not control User Content postings to the remainder of the BeachCandy Swimwear Online Community. The views expressed in the BeachCandy Swimwear Online Community do not necessarily reflect or represent the views of BeachCandy Swimwear, or staff.
BeachCandy Swimwear reserves the right, but does not and shall not have an obligation, to monitor and review all User Content in the BeachCandy Swimwear Online Community and to edit or remove any information or materials that are in violation of this Agreement or applicable law. BeachCandy Swimwear also reserves the right at all times to disclose any information as necessary or advisable to satisfy any law, regulation, or government request.
You may find some User Content to be offensive or inaccurate. If you have concerns regarding User Content posted by others, please contact Customer Service at 855-519-9509. Please also review our Copyright and Intellectual Property Policy.
Linking to the Site: You agree that any time you link to the Site from another website, such link must connect to the full version of an HTML formatted Site page. You are not permitted to link directly to any image hosted on the Site, such as using an “in-line” linking method to cause the image hosted by us to be displayed on another Site. You agree not to link to the Site in any manner such that the Site or any Site page is “framed,” surrounded, or obfuscated by any third-party content, materials, or branding. We reserve all of our rights under the law to insist that any link to the Site be discontinued and that the link open in a new browser window. We may revoke your right to link to the Site from any other site at any time upon written notice to you.
Fees and Billing: Prices are quoted in U.S. dollars. You agree to pay in full the price for each BeachCandy Swimwear Service involving your purchase of a product by credit card, debit card, or by any other payment means acceptable to BeachCandy Swimwear as each payment, if any, is due. You agree to pay all applicable taxes, if any. If BeachCandy Swimwear does not receive timely payment from your credit card or debit card issuer or its agents, you agree to pay all amounts due upon demand by us.
Unless otherwise indicated, our total price for any BeachCandy Swimwear Service involving your purchase of a product will include shipping and handling fees.
Risk of Loss: A third-party carrier will ship any merchandise you purchase from our Site. Title and risk of loss for such merchandise will pass to you upon our delivery to the carrier.
Warranty Disclaimer: BEACHCANDY SWIMWEAR AND BEACHCANDY SWIMWEAR’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND SUPPLIERS PROVIDE THE SITE AND BEACHCANDY SWIMWEAR SERVICES “AS IS,” “AS AVAILABLE,” AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY. BEACHCANDY SWIMWEAR AND BEACHCANDY SWIMWEAR’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ADDITIONALLY, NO ADVICE OR INFORMATION FROM BEACHCANDY SWIMWEAR TO YOU, WHETHER WRITTEN OR ORAL, SHALL CREATE ANY WARRANTY. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
YOU AGREE THAT YOUR USE OF THE SITE, THE BEACHCANDY SWIMWEAR ONLINE COMMUNITY, AND THE BEACHCANDY SWIMWEAR SERVICES SHALL BE AT YOUR OWN SOLE RISK, AND THAT BEACHCANDY SWIMWEAR HAS NO LIABILITY FOR ANY LOSS RESULTING FROM SUCH USE.
Liability Limit: IN NO EVENT SHALL BEACHCANDY SWIMWEAR OR BEACHCANDY SWIMWEAR’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE SITE OR BEACHCANDY SWIMWEAR SERVICES, INCLUDING LOST PROFITS, PERSONAL INJURY, EMOTIONAL DISTRESS, DEATH, AND ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
THE LIABILITY OF BEACHCANDY SWIMWEAR OR BEACHCANDY SWIMWEAR’S OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF: (1) THE TOTAL FEES, IF ANY, YOU PAY TO BEACHCANDY SWIMWEAR IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY; AND (2) USD$100. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Indemnity: YOU AGREE TO INDEMNIFY AND HOLD BEACHCANDY SWIMWEAR AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS’ FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF: (1) YOUR BREACH OF THIS AGREEMENT INCLUDING THE DOCUMENTS IT INCORPORATES BY REFERENCE; (2) YOUR VIOLATION OF ANY LAW; OR (3) YOUR VIOLATION OF ANY RIGHT OF A THIRD PARTY. BEACHCANDY SWIMWEAR RESERVES THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, AND IN SUCH CASE, YOU AGREE TO COOPERATE WITH BEACHCANDY SWIMWEAR’S DEFENSE OF SUCH CLAIM.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND BEACHCANDY SWIMWEAR HAVE AGAINST EACH OTHER ARE RESOLVED.
You and BeachCandy Swimwear agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of this or previous versions of the Agreement, your use of or access to the Services, or any products purchased through the Services will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
Legal Disputes: Prohibition of Class and Representative Actions and Non-Individualized Relief.
YOU AND BEACHCANDY SWIMWEAR AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND BEACHCANDY SWIMWEAR AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.
Legal Disputes: Mandatory Arbitration.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of the Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of the agreement to arbitrate in this Legal Disputes Section, or the interpretation of the paragraph above entitled “Prohibition of Class and Representative Actions and Non-Individualized Relief”, shall be for a court of competent jurisdiction to decide.
You and BeachCandy Swimwear each agree that any and all disputes or claims that have arisen or that may arise between you and BeachCandy Swimwear relating in any way to or arising out of this or previous versions of this Agreement, your use of the Site or Services shall be resolved by final and binding arbitration. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The use of the word “arbitrator” herein shall not be construed to prohibit more than one arbitrator from presiding over an arbitration, rather the AAA’s rules will govern the number of arbitrators that may preside over an arbitration conducted under this agreement to arbitrate in this Legal Disputes Section. Notwithstanding these rules, however, such proceeding shall be governed by the laws of the state of California, as set forth in the Section “Choice of Law”. Any award in an arbitration initiated under this clause shall be limited to monetary damages and shall include no injunction or direction to any party other than the direction to pay a monetary amount. Further, the arbitrator(s) shall have no authority to award punitive, consequential or other damages not measured by the prevailing party’s actual damages in any arbitration initiated under this Legal Disputes Section, except as may be required by statute.
Unless you and we agree otherwise, in the event that the agreement to arbitrate in this Legal Disputes Section is found not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that has arisen or may arise between you and BeachCandy Swimwear must be resolved exclusively by a state or federal court. You and BeachCandy Swimwear agree to submit to the personal jurisdiction of the courts for the purpose of litigating all such claims or disputes.
Choice of Law: This Agreement shall in all respects be governed by the laws of the State of California and the United States of America, without regard to choice of law provisions. The U.N. Convention on Contracts for the International Sale of Goods (1980) shall not apply to this Agreement.
No Waiver: No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term, and BeachCandy Swimwear’s failure to assert any right under this Agreement shall not constitute a waiver of such right or provision.
Severability: If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect.
No Agency: You and BeachCandy Swimwear are independent contractors. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
Notice: Except as explicitly stated otherwise, any notice required or permitted by this Agreement must be in writing. Any notice to BeachCandy Swimwear must be given by postal mail to BeachCandy Swimwear, Attention: Legal Department, 3176 Pullman Street Suite 118 Costa Mesa, CA 92626. Any notice to you may be given: (1) to the email address you provide to BeachCandy Swimwear during registration or when your email address changes, in which case notice will be deemed sufficient 24 hours after the email is sent unless the sending party is notified that the email address is invalid; or (2) by certified mail, postage prepaid, return receipt requested, to the last mailing address you provided to BeachCandy Swimwear, in which case notice will be deemed sufficient three days after the mailing date.
For intellectual property issues, please provide notice as specified in BeachCandy Swimwear’s Copyright and Intellectual Property Policy.
Survival: The provisions of this Section 4 shall survive termination or expiration of this Agreement.