This Agreement sets forth the Standard Terms and Conditions that apply to your
use of Hutbeach services. The User registration form
you completed in conjunction with your account activation is a part of this
Agreement and is incorporated herein by this reference as though fully set forth
TERMS AND CONDITIONS FOR USE OF Hutbeach
SERVICES, RECEIPT OF CONSUMER CONTACT INFORMATION AND FOR USE OF THE Hutbeach.com
BY VISITING OR USING THE Hutbeach WEBSITE, OR ANY
PAGE OF THE www.Hutbeach.com WEBSITE, YOU
ARE AGREEING TO BE BOUND BY THESE TERMS OF SERVICE , AND THAT SUCH AGREEMENT
CONSTITUTES A BINDING CONTRACT BETWEEN YOU AND Hutbeach
. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS OF
USE, PLEASE DO NOT VISIT OR USE THE Hutbeach WEBSITE OR
ANY PAGE OF THE Hutbeach WEBSITE.
Definitions: For the purposes of this Agreement, the terms
set forth below shall have the following meanings:
refers to this Terms of Service Agreement AND your User Order;
- User Order
shall mean one or more separate documents governed by this Agreement
specifying the parameters of the Products, including the Fees for obtaining
and using such Products, made available to User and in accordance herewith
- You and yours,
refer to you, a visitor/User to the Hutbeach
website, as well as anyone you authorize to visit and use the Hutbeach website on your behalf;
us we, and our and ours refer to Hutbeach and its parent company, whose products or services are offered on the Hutbeach website;
website refers to the website located at www.Hutbeach.com and related pages, or any
linked pages and websites hosted or sponsored by Hutbeach
shall mean an individual seeking a product or service whose
personally identifiable information is provided at registration time.
- Product shall
mean a retail product manufactured via lawful means whether conducted
by or on behalf of Hutbeach, or purchased from wholesale vendors and
thereafter provided to User;
Hutbeach is committed to
maintaining the privacy and security of any and all information that you
provide to Hutbeach through the Hutbeach.com
Please note that privacy policies of Hutbeach's
affiliates or third parties may apply to information you provide on the
Hutbeach.com website. In addition, websites linked to the Hutbeach.com website may
have separate privacy policies.
Elibibility of Use and Limitations of Hutbeach.com
You represent and warrant that you are at least 13 years of age. If you are under
age 13, you may not, under any circumstances or for any reason, use the Hutbeach Services.
If you are between the ages of 13 and 18 (or between 13 and the age of legal majority in
your jurisdiction of residence), you may only use the Hutbeach Services under the
supervision of a parent or legal guardian who agrees to be bound by these Terms of Service.
We may, in our sole discretion, refuse to offer the Services to any person or
entity and change its eligibility criteria at any time. You are solely responsible
for ensuring that these Terms of Service are in compliance with all laws, rules
and regulations applicable to you and the right to access the Services is revoked
where these Terms of Service or use of the Services is prohibited or to the extent
offering, sale or provision of the Services conflicts with any applicable law, rule
or regulation. Further, the Services are offered only for your use, and not for the
use or benefit of any third party.
Hutbeach Services are also not available to any users previously removed from Hutbeach
Services by Hutbeach. Finally, Hutbeach Services are not available to any persons barred
from receiving them under the laws of the United States (such as its export and re-export
restrictions and regulations) or applicable laws in any other jurisdiction.
Except where we specify otherwise, Hutbeach offers
you access to the Hutbeach.com website solely for your personal and
non-commercial uses. You promise that you will not use the Hutbeach.com website,
in whole or in part, for any purpose that is unlawful or prohibited by this
Agreement. You agree that you will not modify, copy, distribute, transmit,
display, perform, reproduce, publish, license, create derivative works from,
frame in another web page, use on any other website, transfer or sell any
information, software, lists of users, databases or other lists, products or
services provided through or obtained from the Hutbeach.com website. This means,
among other activities, that you agree not to engage in the practices of
screen scraping, database scraping, or any other similar activity. You
agree that you will not use the Hutbeach.com website in any manner that could
damage, disable, overburden, or impair the Hutbeach.com website or interfere with
any other party's use and enjoyment of the Hutbeach.com website. You may not
obtain or attempt to obtain any materials or information through any means not
intentionally made available or provided for through the Hutbeach.com website.
If and when requested by Hutbeach.com, you agree to provide true, accurate and
complete user information and to refrain from impersonating or falsely
representing your affiliation with any person or entity. Except with the
written permission of Hutbeach.com, you agree
that you will not access or attempt to access password protected, secure or
non-public areas of the Hutbeach.com website.
You agree that Hutbeach may in its sole discretion
and at any time terminate your access to and use of the Hutbeach.com website, or
any part thereof, with or without notice.
E-Signatures and Communications
All electronic communications, including any electronic signatures or
identifiers of Hutbeach, are being transmitted solely
for informational purposes. By making an electronic communication, Hutbeach specifically does not intend to agree, bind, or
otherwise consent to any matter for any purpose whatsoever, including product sell,
product shipping or product return, and does not intend that the
electronic communication, or any related or associated electronic media or
data, to constitute, or to be deemed to constitute, an electronic signature
pursuant to any state or federal law or regulation that authorizes the use of
REGISTERING FOR SERVICE USER ORDER
Registration is available to eligible members only. To register, you must complete
a User Registration form wherein you set your username and password and provide contact
information. You may only register one time for our service. You shall not: (I)
select or use as a username a name of another person with the intent to impersonate
that person; (II) use as a username a name subject to any rights of a person other
than you without appropriate authorization; or (III) use, as a username, a name
that is otherwise offensive, vulgar or obscene.
You are solely responsible for maintaining the confidentiality of your account and
password, for restricting access to your computer, and for all activities that
occur under your account or password. Please make sure the information you provide
to Hutbeach upon registration and at all other times is true, accurate, current,
and complete to the best of your knowledge.
Unless expressly permitted in writing by Hutbeach, you may not sell, rent, lease,
share or provide access to your account to anyone else, including without limitation
charging anyone for access to administrative rights on your account. Hutbeach
reserves all available legal rights and remedies to prevent unauthorized use of the
Hutbeach Services, including, but not limited to, technological barriers, IP mapping,
and directly contacting your Internet Service Provider (ISP)
regarding such unauthorized use.
User Conduct and User Best Practices
Your acceptance of these terms is your warrant and representation to us that
your conduct in performing your obligations under this Agreement will conform
to all of the Terms of Service set forth herein and all applicable,
international and/or federal, state and local laws, rules and regulations
YOU AGREE NOT TO violate any law, contract, intellectual property or other third-party right
or commit a tort, and that you are solely responsible for your conduct while on the Hutbeach
You agree that you will comply with these Terms of Service and will not:
- Create, upload, transmit, distribute, or store any content that is inaccurate, unlawful,
infringing, defamatory, obscene, pornographic, invasive of privacy or publicity rights,
harassing, threatening, abusive, inflammatory, or otherwise objectionable.
- Impersonate any person or entity, falsely claim an affiliation with any person or entity,
or access the Hutbeach Services accounts of others without permission, forge another person's
digital signature, misrepresent the source, identity, or content of information transmitted
via the Hutbeach Services, or perform any other similar fraudulent activity.
- Make unsolicited offers, advertisements, proposals, or send junk mail or spam to users of
the Hutbeach Services, including, without limitation, unsolicited advertising, promotional
materials, or other solicitation material, bulk mailing of commercial advertising, chain mail,
informational announcements, charity requests, petitions for signatures, or any of the preceding
things related to promotional giveaways (such as raffles and contests), and other similar
- Harvest or collect the email addresses or other contact information of other users from the
- Defame, harass, abuse, threaten or defraud users of the Hutbeach Services, or collect, or
attempt to collect, personal information about users or third parties without their consent.
- Remove, circumvent, disable, damage or otherwise interfere with security-related features
of the Hutbeach Services or User Content, features that prevent or restrict use or copying
of any content accessible through the Hutbeach Services, features that enforce limitations
on the use of the Hutbeach Services or User Content, or delete the copyright or other
proprietary rights notices on the Hutbeach Services or User Content.
- Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code
of the Hutbeach Services, Hutbeach Streamer or any part thereof.
- Modify, adapt, translate or create derivative works based upon the Hutbeach Services or
any part thereof.
- Interfere with or damage operation of the Hutbeach Services or any user's enjoyment of
them, by any means, including uploading or otherwise disseminating viruses, adware, spyware,
worms, or other malicious code.
- Relay email from a third party's mail servers without the permission of that third party.
- Access any website, server, software application, or other computer resource owned, used
and/or licensed by Hutbeach, including but not limited to the Hutbeach Services, by means of
any robot, spider, scraper, crawler or other automated means for any purpose, or bypass any
measures Hutbeach may use to prevent or restrict access to any website, server, software
application, or other computer resource owned, used and/or licensed Hutbeach, including
but not limited to the Hutbeach Services.
- Manipulate identifiers in order to disguise the origin of any User Content transmitted
through the Hutbeach Services.
- Interfere with or disrupt the Hutbeach Services or servers or networks connected to the
Hutbeach Services, or disobey any requirements, procedures, policies or regulations of networks
connected to the Hutbeach Services; use the Hutbeach Services in any manner that could interfere
with, disrupt, negatively affect or inhibit other users from fully enjoying the Hutbeach Services,
or that could damage, disable, overburden or impair the functioning of the Hutbeach Services in
- Use or attempt to use another user's account without authorization from that user and Hutbeach.
- Attempt to circumvent any content filtering techniques we employ, or attempt to access any
service or area of the Hutbeach Services that you are not authorized to access.
- Attempt to indicate in any manner that you have a relationship with us or that we have
endorsed you or any products or services for any purpose.
- Use the Hutbeach Services for any illegal purpose, or in violation of any local, state,
national, or international law or regulation, including, without limitation, laws governing
intellectual property and other proprietary rights, data protection and privacy.
Hutbeach takes no responsibility and assumes no liability for any User Content or for any loss
or damage resulting therefrom, nor is Hutbeach liable for any mistakes, defamation, slander,
libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter when
using the Hutbeach Services. Your use of the Hutbeach Services is at your own risk. In addition,
these rules do not create any private right of action on the part of any third party or any
reasonable expectation that the Hutbeach Services will not contain any content that is prohibited
by such rules.
We also reserve the right to access, read, preserve, and disclose any information as we reasonably
believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental
request, (ii) enforce these Terms of Service, including investigation of potential violations
hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv)
respond to user support requests, or (v) protect the rights, property or safety of us, our users
and the public.
Use of Devices and Applications
Access to the Hutbeach Services may require the use of your personal computer or mobile device,
as well as communications with or use of space on such devices. You are responsible for any
Internet connection or mobile fees and charges that you incur when accessing the Hutbeach
We offer two methods by which you may pay for products.
- Credit card: If you use a credit card to fund your
account, YOU AGREE TO NOT CHARGE BACK YOUR CARD for any reason. If you are
dissatisfied with our services or any product you have purchased using
your credit card you must follow the return/refund policy and procedures set
forth under these Terms of Service. In the event you breach this term and you
charge back your credit card for all or partial amounts within your account,
you will be charged an administrative service fee of one hundred ($100)
dollars, which you agree to pay in addition to the amount of the product purchase
fee due for products you have received to the date of the chargeback. Your user
account balance will not reflect a deposit made until your credit card company
has processed your payment into Hutbeach's merchant account. This date
may differ from the date you actually authorize your payment.
- Check or Draft: If you use a check, including a fax
check, you agree to not stop payment on the check for any reason. If you are
dissatisfied with our services or any products you have purchased using
your check or draft you must follow the return/refund policy and procedures set
forth under these Terms of Service. If your check or draft is not honored by
the bank for any reason, you are subject to and will be charged a return check
fee equal to three (3) times the face value of the check up to a maximum of one
thousand ($1000) dollars, which you agree to pay in addition to the check face
amount. Your user account balance may not reflect a deposit made into your user
account until your check been deposited into our bank, processed and has
cleared your bank. This date may differ from the date you send your payment or
the date we receive your check. ALL CHECKS MUST BE ACCOMPANIED BY A CLEAR ENLARGED
COPY OF A VALID DRIVERS LICENSE FOR THE SIGNER OF THE CHECK.
In any of the above circumstances, you also agree to pay any collection
costs and reasonable attorney fees and court costs should collection action be
For Users that Hutbeach determines meet the
Eligibility Criteria and funding requirements, products shall be provided pursuant
to the parameters defined in Your initial User Order.
PRODUCTS CONTENT AND GUARANTEE
Products are procured from varying commercial resources. Description provided within
a product is inputted solely by the provider and not Hutbeach or anyone affiliated with us. Providers do not
submit their contact information directly to Hutbeach.
A product may come to Hutbeach from a variety of provider
commercial sources only some of which may be owned by Hutbeach.
reserves the right to change or adjust this policy without prior notice to you.
You are therefore encouraged to review these Terms of Service periodically.
PRODUCT RETURN POLICY:
Please see our Return Policy document.
You agree that you will not use Hutbeach or Hutbeach data for any unauthorized use including but not
limited to chain letters, junk mail, "spamming", telephone
solicitations in violation of any state or federal Do-Not-Call registry, or as
a basis for any use or distribution lists to any person who has not given
specific permission to be included in such a process. You further agree not to
use Hutbeach or Hutbeach data
to send any messages or materials that are unlawful, considered an act(s)
against public policy, discrimination of any kind, harassing, libelous,
abusive, threatening, harmful, vulgar, obscene or otherwise constitute a
criminal offense, give rise to civil liability or otherwise objectionable
material of any kind or nature or that encourages conduct that could constitute
a criminal offense, give rise to civil liability or otherwise violate any
applicable local, state, national or international law or regulation. Hutbeach reserves the right to
terminate User's account immediately and without notice, if it becomes aware
and determines, in its sole discretion, that User is violating any of the
ACCOUNT AND PASSWORD
You will be allowed to choose your own username and confidential password. YOU ARE
THE ONLY ONE AUTHORIZED BY Hutbeach TO USE YOUR USERNAME
AND PASSWORD. You are solely responsible for maintaining the confidentiality of
your user ID and password. You are solely responsible for all uses of your
account, whether or not authorized by you. You agree to immediately notify Hutbeach of any unauthorized use of your account. Unless
otherwise agreed to in writing, you will not be entitled to a return credit or
refund for product(s) purchased through your account prior to you notifying us of
an unauthorized use.
Some Links on the Hutbeach website may let you leave
the Hutbeach website. You understand the linked sites
are not under the control of Hutbeach and Hutbeach is not responsible for the contents or operation of
any linked site or any link contained in a linked site, or any changes or any
updates of such sites. Hutbeach
is not responsible for web casting or any other form of transmission received
from any linked site. Hutbeach
is providing these links to you only as a convenience, and the inclusion of any
link does not imply endorsement by Hutbeach of the
linked site or any association with their operators.
DISCLAIMER OF WARRANTIES / LIMITATION OF LIABILITY
THE Hutbeach SERVICE PROVIDED IS PROVIDED ON AN
"AS IS", "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY
KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Hutbeach EXPRESSLY DISCLAIMS ANY
REPRESENTATION OR WARRANTY THAT THE Hutbeach SERVICE
WILL BE ERROR-FREE, TIMELY, SECURE OR UNINTERRUPTED. NO ORAL ADVICE OR WRITTEN
INFORMATION GIVEN BY Hutbeach, ITS EMPLOYEES, LICENSORS
OR AGENTS WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL Hutbeach,
Hutbeach, Inc., ITS AFFILIATES, OR THEIR OFFICERS, DIRECTORS, EMPLOYEES,
SUCCESSORS AND ASSIGNS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL
OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE Hutbeach SERVICE, INCLUDING BUT NOT LIMITED TO RELIANCE ON
ANY INFORMATION OBTAINED ON THE Hutbeach SERVICE; OR
THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR
E-MAIL, LOSS OF OR DAMAGE TO DATA, ERRORS, DEFECTS, VIRUSES, DELAYS IN
OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT
LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR
UNAUTHORIZED ACCESS TO Hutbeach RECORDS, PROGRAMS OR
SERVICES. THE SUBSCRIBER HEREBY ACKNOWLEDGES THAT THIS PROVISION WILL APPLY
WHETHER OR NOT Hutbeach IS GIVEN NOTICE OF THE
POSSIBILITY OF SUCH DAMAGES AND THAT THIS PROVISION WILL APPLY TO ALL CONTENT,
MERCHANDISE OR SERVICES AVAILABLE FROM Hutbeach AND ITS
LIMITATION OF LIABILITY
IN THE EVENT THAT EITHER PARTY BREACHES ITS OBLIGATIONS UNDER THIS
AGREEMENT, THE NON-BREACHING PARTY SHALL HAVE THE RIGHT TO EXERCISE ALL RIGHTS
AND REMEDIES AVAILABLE TO IT AT LAW OR IN EQUITY; PROVIDED, HOWEVER, SUBJECT TO
THE DAMAGE AMOUNT LIMITATION SET FORTH BELOW, THE LIABILITY OF THE BREACHING
PARTY SHALL BE LIMITED TO DIRECT, ACTUAL DAMAGES ONLY AND ALL OTHER DAMAGES AND
REMEDIES ARE EXPRESSLY WAIVED. IN NO EVENT SHALL EITHER PARTY INCLUDING Hutbeach,
Inc., ITS AFFILIATES, OR THEIR OFFICERS, DIRECTORS, EMPLOYEES,
SUCCESSORS AND ASSIGNS, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL,
INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES IN TORT, CONTRACT OR
OTHERWISE INCLUDING, WITHOUT LIMITATION, LOST PROFITS, EVEN IF ADVISED OF THE
POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR CLAIM. LIABILITY OF Hutbeach, Hutbeach, Inc., ITS AFFILIATES, OR THEIR OFFICERS,
DIRECTORS, EMPLOYEES, SUCCESSORS AND ASSIGNS, AND THE LIABILITY OF OUR
SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE
LESSER OF (A) THE AMOUNT OF FEES YOU PAY TO US IN THE TWO (2) MONTHS PRIOR TO
THE ACTION GIVING RISE TO LIABILITY, OR (B) ONE HUNDRED DOLLARS ($100).
NO ACTION ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE
THAN ONE YEAR AFTER SUCH CAUSE OF ACTION OCCURS.
THE TERMS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT
FOR WHATEVER REASON.
Neither party shall be liable in any way for its failure to perform
hereunder, other than its failure to pay any monies due and owing hereunder, if
such failure is occasioned by any of the following: war; fire; flood;
interruption of transportation; embargo; accident; explosion; governmental
orders, regulations, restrictions, priorities or rationing; strike, lockout or
other labor problems; or any cause beyond the reasonable control of the
non-performing party provided, however, that the non-performing party shall
make a good faith effort to perform.
COPYRIGHT AND USER CONTENT LICENSE TO Hutbeach
All contents of the Hutbeach website are proprietary
to Hutbeach, its successors and assigns, and are protected under
and international Copyright and Trademark laws. All rights are reserved. You
may not download and/or save a copy of any of the screens except as otherwise
provided in this Agreement. Hutbeach does not grant any license or other
authorization to any user of its trademarks, service marks, copyrightable
material or other intellectual property by placing them on this website.
Hutbeach, reserves any rights not expressly granted herein.
Unless otherwise agreed to in a written agreement between you and Hutbeach
that was signed by an authorized representative of Hutbeach, if you submit,
transmit, display, perform, post or store User Content using the Hutbeach
Services, you grant Hutbeach and its sublicensees, to the furthest extent
and for the maximum duration permitted by applicable law (including in
perpetuity if permitted under applicable law), an unrestricted, worldwide,
irrevocable, fully sub-licenseable, nonexclusive, and royalty-free right to
(a) use, reproduce, modify, adapt, publish, translate, create derivative works
from, distribute, perform and display such User Content (including without
limitation for promoting and redistributing part or all of the Hutbeach
Services (and derivative works thereof)) in any form, format, media or media
channels now known or later developed or discovered; and (b) use the name,
identity, likeness and voice (or other biographical information) that you
submit in connection with such User Content. Should such User Content contain
the name, identity, likeness and voice (or other biographical information) of
third parties, you represent and warrant that you have obtained the appropriate
consents and/or licenses for your use of such features and that Hutbeach and
its sub-licensees are allowed to use them to the extent indicated in these
Terms of Service.
User Content Representations
You are solely responsible for your User Content and the consequences of posting
or publishing it. You represent, and warrant that:
- You are the creator and owner of the User Content or otherwise have
sufficient rights and authority to grant the rights granted herein.
- Your User Content does not and will not (a) infringe, violate, or
misappropriate any third-party right, including any copyright, trademark,
patent, trade secret, moral right, privacy right, right of publicity, or
any other intellectual property or proprietary right or (b) defame any
- Your User Content does not contain any viruses, adware, spyware, worms,
or other harmful or malicious code
- Unless you have received prior written authorization, your User Content
specifically does not contain any pre-release or non-public beta software
or game content or any confidential information of Hutbeach or third parties.
Hutbeach reserves all rights and remedies against any users who breach these
representations and warranties.
Your Content is Uploaded at Your Own Risk
Hutbeach uses reasonable security measures in order to attempt to protect User
Content against unauthorized copying and distribution. However, Hutbeach does
not guarantee that any unauthorized copying, use or distribution of User Content
by third parties will not take place. To the furthest extent permitted by applicable
law, you hereby agree that Hutbeach shall not be liable for any unauthorized copying,
use or distribution of User Content by third parties and release and forever waive
any claims you may have against Hutbeach for any such unauthorized copying or usage
of the User Content, under any theory. THE SECURITY MEASURES TO PROTECT USER CONTENT
USED BY Hutbeach HEREIN ARE PROVIDED AND USED "AS-IS" AND WITH NO WARRANTIES,
GUARANTEES, CONDITIONS, ASSURANCES OR OTHER TERMS THAT SUCH SECURITY MEASURES WILL
WITHSTAND ATTEMPTS TO EVADE SECURITY MECHANISMS OR THAT THERE WILL BE NO CRACKS,
DISABLEMENTS OR OTHER CIRCUMVENTION OF SUCH SECURITY MEASURES.
We may terminate your access to all or any part of the Hutbeach Services at any time,
with or without cause, with or without notice, effective immediately, which may result
in the forfeiture and destruction of all information associated with your membership.
If you wish to terminate your Account, you may do so by contacting Hutbeach customer
service. Any fees paid hereunder are non-refundable. All provisions of these Terms of
Service which by their nature should survive termination shall survive termination,
including, without limitation, licenses of User Content, ownership provisions, warranty
disclaimers, indemnity and limitations of liability.
California law shall govern
this Agreement, and any dispute arising from the relationship between the
parties to this Agreement, excluding any laws that direct the application of
another jurisdiction's laws and without regard to conflicts of law principles.
In any litigation, arbitration, or other proceeding by which one party either
seeks to enforce its rights under this Agreement (whether in contract, tort, or
both) or seeks a declaration of any rights or obligations under this Agreement,
the prevailing party shall be awarded its reasonable attorney fees, and cost
and expenses incurred, subject to the Limitation of Liabilities clause. The
parties consent to the exclusive jurisdiction and venue of the courts of the
State of California or to any
Federal Court located within the southern district for the State of California.
INTERPRETATION AND CONSTRUCTION
No provision of this Agreement shall be construed in favor of or against Hutbeach or you by reason of the extent to which any such
party or its counsel participated in the drafting thereof. The parties agree
that California Civil Code Section 1654 shall not apply to the terms of this
Terms of Service Agreement. No direct benefit is intended to be conferred by
this Agreement on any person not a party to this Agreement and any benefit
which may be actually conferred is purely incidental. In the event of any
conflict between the terms of this Agreement and the User Order, the terms of
this Agreement shall control.
Any dispute or claim arising hereunder shall be submitted to binding
arbitration in Los Angeles County, California,
and conducted in accordance with the Commercial Arbitration Rules of the
American Arbitration Association, ("AAA"), and the parties expressly
waive any right they may otherwise have to cause any such action or preceding
to be brought or tried elsewhere. Any such dispute or claim shall be arbitrated
on an individual basis, and shall not be consolidated in any arbitration with
any claim or controversy of any other party. The parties hereunder further
agree that: (i) any request for arbitration shall be
made in writing and must be made within a reasonable time after the claim,
dispute or other matter in question has arisen; provided however, that in no
event shall the demand for arbitration be made after the date that institution
of legal or equitable proceedings based on such claim, dispute, or other matter
would be barred by the applicable statues of limitations; (ii) the appointed
arbitrator must be a former or retired judge or attorney at law with at least
five (5) years experience in the substantive area of this Agreement; (iii) all
proceedings involving the parties shall be reported by a certified shorthand
reporter and written transcripts of any such proceedings shall be prepared and
made available to the parties; (iv) the decision of the arbitrator or arbitrators
must be made within ninety (90) days from the date the arbitration proceedings
are initiated; (v) costs and fees of the arbitrator shall be borne by the
non-prevailing party, unless the arbitrator or arbitrators determine otherwise;
(viii) the award or decision of the arbitrator, which may include equitable
relief, and reasonable attorneys fees and costs to the prevailing party, shall
be final and judgment may be entered on such award in accordance with
applicable law in any court having jurisdiction over the matter. The parties
agree that in connection with any such arbitration, the following provisions of
the California Code of Civil Procedure, as enacted or hereafter amended, shall
apply: Section 1856, et seq., "The General Principles of Evidence";
Section 2016, et seq., "The Civil Discovery Act"; and Section 1283.5,
"Manner of Taking Deposition."
Should either party file an action contrary to this provision, the other
party may recover reasonable attorneys' fees and costs of not less than one thousand
($1000) dollars and not more than the actual reasonable attorneys fees and
costs incurred in defending such an action and subject to written verification,
proof and approval by a court of competent jurisdiction with whom the action in
question was heard.
If any provisions of this Agreement shall be held to be invalid or
unenforceable for any reason, the remaining provisions shall continue to be
valid and enforceable. If a court finds that any provision of this Agreement is
invalid or unenforceable, but that by limiting such provision it would become
valid or enforceable, then such provision shall be deemed to be written,
construed, and enforced as so limited.
The terms of this Agreement apply to those obligations that survive any
cancellation, termination, or rescission, namely
confidentiality/non-disclosure, warranty, indemnification, liability and limits
thereon, rights and obligations upon and following termination and assignment.
You agree to defend, indemnify and hold harmless Hutbeach
against any and all claims, losses, liability costs and expenses (including but
not limited to reasonable attorneys' fees) arising from your violation of these
Terms and Conditions or any third-party's rights, (including, without
limitation, infringement of any copyright trademark, service mark, trade
secrets, right of privacy or publicity or any other third party right). The
terms of this section shall survive the termination of your relationship with Hutbeach.
Headings are for reference purposes only and in no way define, limit,
construe or describe the scope or extent of such action.
You may not sell, mortgage, assign or otherwise transfer any of your rights
or obligations under this Agreement to any other person or entity, without the
express written consent of Hutbeach. Notwithstanding
the foregoing, either You or Hutbeach may assign its
rights and obligations under this Agreement without consent and without notice
to the other, and both You and Hutbeach shall accept
such assignment as a novation, to a successor as a
result of a change in business legal structure, corporate restructuring,
reorganization, merger, consolidation, or acquisition of all or substantially
all of the assigning party's stock or assets, provided that this Agreement
shall be binding upon, inure to the benefit of and be enforceable by You and Hutbeach and their respective successors and assigns.
This Agreement constitutes the final, complete, and exclusive statement of the
terms of this Agreement between the parties pertaining to the subject matter of
this Agreement and supersedes all prior and contemporaneous understandings or
agreements of the parties. No party has been induced to enter into this
Agreement by, nor is any party relying on, any representation or warranty
independent of those expressly set forth in this Agreement. No direct benefit
is intended to be conferred by this Agreement on any person not a party to this
Agreement and any benefit which may be actually conferred is purely incidental.
MODIFICATION OF TERMS
Hutbeach reserves the right
to modify this Terms of Service Agreement and its policies at any time and
without advance notice to you, effective upon making the modified provisions
available on the Hutbeach website. You are responsible
for regularly reviewing these documents. Continued use of the Hutbeach website after any such changes shall constitute your
consent to such changes. Hutbeach
does not and will not assume any obligation to notify you of any changes to
this Terms of Service Agreement.
You're establishing of an account and/or your use of the Hutbeach
website is evidence that you have read and understand this Terms of Service
Agreement as set forth above and that you have had the opportunity to consult
with independent counsel of your choice prior to establishing your account and
utilizing the services contemplated by this Agreement.
Last updated on July