BEACH REACH TERMS AND CONDITIONS OF USE
LAST UPDATED: January 30, 2020
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THIS SERVICE.
TERMS AND CONDITIONS
2.1 "Customer Content" means any information, data, content, media (video, images, text, scripts, etc.) that is uploaded, posted or otherwise provided to the BEACH REACH Platform by Customer, including any and all location information (e.g. addresses, geolocation information, etc.) account and profile information (e.g. username, password, and any other information you provide to Beach Reach associated with your account) your name, your email address, your home address, work address, contact information, your IP address, messages between Customer and other Users, and any other information Customer provides to the BEACH REACH Platform together with all metadata related thereto.
2.2 "BEACH REACH Content" means any information, data, content, media (video, images, text, scripts, etc.) that is uploaded, posted, downloaded, emailed, delivered or otherwise provided to a Customer (whether or not displayed) from the BEACH REACH Platform and shall include any and all of content and metadata related thereto which becomes a part of the BEACH REACH Platform, including all routes, suggestions, information associated with other Users, etc.
2.3 "BEACH REACH IP" means any and all intellectual property now existing or developed in the future that is owned, controlled, conceived, created, and/or reduced to practice by BEACH REACH or its licensors, including without limitation any and all trade secrets, know-how, copyrights, algorithms, software, and patent rights (whether pending or otherwise) that arises from or is associated with the BEACH REACH Platform, including any improvements to the BEACH REACH Platform that result from Customer Content..
2.4 "Application Content" means any information, data, content, or database associated with the Site (whether or not displayed) including without limitation any and all text, graphics, sounds, videos, images, maps, routes, logos, buttons, icons, databases, and any other media of any type now existing or developed in the future that has been included in the Site or made available to Users via BEACH REACH Mobile Application.
2.5 "Software" means any computer code, computer program, script, subroutine, patch, executable file, machine-readable code or human-readable source code associated with the BEACH REACH Application.
2.6 "Users" refers to the users of the BEACH REACH Platform, including Account Holders and any others.
2.7 "Account Holders" refers to Users who have registered an account with BEACH REACH.
2.8 "BEACH REACH Application" means BEACH REACH's proprietary online software-as-a-service application known as BEACH REACH which provides its Users with information regarding access and trip planning to are beaches in the Berkeley, Charleston and Dorchester counties of South Carolina. The BEACH REACH Application includes all BEACH REACH Content and Software as well as all services associated with the application together with all BEACH REACH IP associated with same. The BEACH REACH Application is made available to Users via the Site and BEACH REACH Mobile.
2.9 "BEACH REACH Mobile" means the mobile application through which Users may interact with the BEACH REACH Application via a device (e.g. a smartphone, tablet, etc.), rather than via the Site, including all associated user interfaces and/or portals that are made available to Customer to access or use the BEACH REACH Application and all Application Content associated therewith.
2.10 "BEACH REACH Platform" means BEACH REACH Application, the Site and BEACH REACH Mobile, together with all of Beach Reach IP, content and metadata associated therewith.
III. LICENSE AND LIMITATIONS
3.1 BEACH REACH License Grant. BEACH REACH hereby grants to Customer, and Customer hereby accepts from BEACH REACH, a limited, non-exclusive, non-assignable, non-transferable, non-sublicenseable, revocable license (hereinafter, the "License") for Customer to access, download, install, use, interact with and display the BEACH REACH Platform for non-commercial, personal purposes. In furtherance of the foregoing, it is expressly agreed and acknowledged by the Parties that the License is subject to the terms and conditions herein.
3.2 Ownership. BEACH REACH owns the BEACH REACH Application (Customer Content uploaded thereto excluded), the Site, BEACH REACH Mobile, BEACH REACH Content and BEACH REACH IP. Customer acknowledges and agrees that the BEACH REACH Platform is licensed to Customer and not sold. Subject to the terms and conditions of this Agreement, Customer acknowledges and agrees that BEACH REACH and/or its licensors shall retain on an exclusive basis the entire right, title, and interest in and to any and all of the BEACH REACH Platform, provided that, except for the license set forth below in Section 3.4, in no event shall BEACH REACH or any of its licensees acquire any rights, title or interest in and to the Customer Content.
3.3 Limitations of License Grant. Customer acknowledges and agrees that it shall not without the prior written consent of BEACH REACH (i) use the BEACH REACH Platform for any commercial use, including, but not limited to, advertising, promotion, or otherwise using the BEACH REACH Application to generate income, commercial benefit, to Customer or to any third party who engages you for such purpose; (ii) reproduce, distribute, decompile, or disseminate to third parties, or modify, make derivative works of, reverse engineer, disassemble or decompile to discover the source code of any Software, or exploit the BEACH REACH Platform or the BEACH REACH IP for any purpose whatsoever; (iii) remove any trademark, product identification, copyright, or other notices embedded within the BEACH REACH Platform; (iv) share your username or password with any third party, or otherwise permit a third party to access your account; (v) sublicense, relicense, provide, lease or lend the BEACH REACH Platform to any third party, or use the BEACH REACH Platform for third-party timesharing or service bureau purposes; (vi) copy or download excessive quantities of information or scrape, batch harvest, upload, or in any other way reproduce information, data, or BEACH REACH Content for any purpose including without limitation aggregating information or performing analytics thereon; (vii) use the BEACH REACH Application to breach the rights of any third party; or (viii) use the BEACH REACH Application in connection with any pornographic, defamatory, or obscene product or service, or prurient interest.
3.4 Providing Customer Content / Customer Content Warranty. Customer may post, upload, submit, transmit or otherwise provide Customer Content to the BEACH REACH Application and/or the Site including, without limitation, usernames, passwords, nicknames, addresses, location information, schedules, Network information, employer identification. Subject to the terms and conditions of this Agreement, Customer hereby grants to BEACH REACH an exclusive, non-assignable, non-sublicenseable, fully paid-up, royalty-free license to store, make copies of (for reasonably necessary back-up, disaster recovery, and performance troubleshooting and optimization purposes only), analyze, display, host, or download the Customer Content that BEACH REACH receives from Customer for the limited purpose of developing, managing, maintaining, and otherwise making the BEACH REACH Application available to Customer, and for providing analytics, de-identified Customer Content, and/or aggregation services to third parties. Customer represents and warrants that (i) Customer is the original author, owner, and/or is otherwise authorized to contribute the Customer Content to BEACH REACH; (ii) that the Customer Content is accurate to the best of Customer’s knowledge; (ii) using the Customer Content in association with the BEACH REACH Application as provided herein does not violate any rights of any third party, to include any intellectual property rights of such third party; and (iii) that Customer Content does not contain, and Customer will not otherwise upload, any malicious software to the BEACH REACH Application and/or the Site. Customer acknowledges and agrees that Customer is responsible for Customer’s use of the BEACH REACH Application, including all activities, conduct and communications with or via the BEACH REACH Application (including communications with other Users), and for the consequences of such use, activities, conduct and communications.
3.5 Authorization to Use Location Information. Customer acknowledges and agrees that Customer’s location information (e.g. where customer is located as well as any address provided by Customer to the BEACH REACH Application via Customer’s Systems and Equipment) is part of Customer Content and may be used by BEACH REACH as provided by Section 3.4.
3.6 Rights to Monitor and Audit. BEACH REACH shall have the right, but not the obligation, to monitor and audit Customer's access to and use of the BEACH REACH Application to ensure compliance with this Agreement 11.3. Such monitoring and audit shall be performed remotely. BEACH REACH may suspend Customer's access to the BEACH REACH Application if it reasonably suspects that (i) the terms of the License have been violated, (ii) Customer has materially breached this Agreement, or (iii) any other prohibited use of the BEACH REACH Application has been undertaken by Customer and/or under Customer’s account. Any suspension of Customer's access to the BEACH REACH Application shall not limit or waive BEACH REACH's rights to terminate this Agreement in accordance with Article X of this Agreement.
IV. PROVIDING THE BEACH REACH PLATFORM
BEACH REACH shall use commercially reasonable efforts to make the BEACH REACH Platform available to Customer. Customer understands and agrees that the BEACH REACH Platform, including any features, content, etc., may be modified by BEACH REACH without notice to Customer. Customer shall be solely responsible for the selection, use and expense related to any and all telecommunications, internet access, cellular data networks, internet service providers, and any other services and equipment used to access the BEACH REACH Platform including without limitation, all computers, personal devices, smart phones, tablets, servers, operating systems, web browsers, etc. (collectively "Systems and Equipment"). Except to the extent caused by the willful misconduct of BEACH REACH (but not including BEACH REACH’s determination, at its sole discretion, not to support any systems or equipment), BEACH REACH shall have no liability with respect to Customer's inability to access the BEACH REACH Platform due to Customer's Systems and Equipment. BEACH REACH shall use commercially reasonable efforts to address problems or correct errors regarding the BEACH REACH Platform that are brought to BEACH REACH's attention, subject to the occurrence of a Force Majeure Event set forth Section 11.12 of this Agreement.
BEACH REACH shall itself or through a duly authorized third party, host in a secure manner using commercially reasonable protection measures commensurate with the software and hosting industries, the BEACH REACH Platform, together with any and all databases associated therewith, to enable BEACH REACH to provide the BEACH REACH Platform. This may include hosting Customer Content on third-party servers. BEACH REACH shall employ commercially reasonable security measures to keep Customer Content confidential and secure, including relying upon the commercially reasonable efforts of the third parties who host such Customer Content.
VI. DISCLAIMER OF WARRANTY
THE BEACH REACH PLATFORM IS PROVIDED "AS-IS," AND BEACH REACH DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE BEACH REACH PLATFORM AND BEACH REACH IP, INCLUDING WITHOUT LIMITATION ANY AND ALL: (I) WARRANTIES CONCERNING UNINTERRUPTED OR ERROR-FREE ACCESS OR USE OF THE BEACH REACH PLATFORM, OR THE ACCURACY OF ANY BEACH REACH CONTENT OR RESULTS OBTAINED THROUGH USE OF THE BEACH REACH PLATFORM; (II) WARRANTIES OF TITLE; (III) WARRANTIES OF NON-INFRINGEMENT; AND (IV) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BEACH REACH SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES ASSOCIATED WITH PROVIDING INFORMATION REGARDING AREA BEACHES TO THE CUSTOMER VIA THE BEACH REACH APPLICATION. BEACH REACH HAS NO AUTHORITY OR CONTROL OVER ANY USER OF THE BEACH REACH PLATFORM OR OVER ANY PUBLIC TRANSPORTATION OPTIONS PRESENTED TO YOU VIA THE BEACH REACH APPLICATION.
THIS DISCLAIMER APPLIES TO ANY DAMAGES OR INJURY RESULTING FROM USING THE BEACH REACH APPLICATION AS WELL AS FAILURES OF PERFORMANCE, ERRORS, OMISSIONS, INTERRUPTIONS, DELETIONS, DEFECTS, DELAYS, INOPERABILITY OR TRANSMISSION, COMPUTER VIRUS, MALICIOUS SOFTWARE, CYBER-ATTACKS, COMMUNICATION FAILURES, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS CONDUCT, NEGLIGENCE, OR ANY OTHER CAUSE OF ACTION. THIS DISCLAIMER SHALL NOT APPLY TO ANY DAMAGES OR INJURY CAUSED BY THE WILFULL MISCONDUCT OF BEACH REACH. CUSTOMER SPECIFICALLY ACKNOWLEDGES THAT BEACH REACH IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF USERS OR OTHER THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH CUSTOMER.
VII. THIRD PARTIES ASSOCIATED WITH BEACH REACH PLATFORM
7.1 Links to Third Party Websites. The BEACH REACH Platform may contain links to websites that are under the control of third parties. BEACH REACH is not responsible for the content of any linked website and does not represent that the content of any linked website is true or harmless or that any products and/or services described on any linked website are of acceptable quality. Customer assumes all risk associated with following any links to third party websites provided via the BEACH REACH Platform.
7.2 Assumption of Risk as to the BEACH REACH Platform. Customer acknowledges and agrees that BEACH REACH is not responsible for the conduct of other Users of the BEACH REACH Platform, including conduct that may be harmful, dangerous, offensive, defamatory, illegal, or obscene. Customer acknowledges and agrees that BEACH REACH is not responsible for Customer’s safety at any time, including when Customer uses any information provided to Customer via the BEACH REACH Platform. Customer assumes all risk associated with using the BEACH REACH Platform.
VIII. LIMITATION OF LIABILITY
EXCEPT FOR CLAIMS ARISING FROM THE WILLFUL MISCONDUCT OF BEACH REACH, IN NO EVENT SHALL BEACH REACH BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DEATH, BODILY INJURY, PROPERTY DAMAGE, LOSS OF PROFITS, REVENUE, DATA, INVASION OF PRIVACY, CLAIMS ARISING FROM THIRD PARTIES’ USE OF THE BEACH REACH PLATFORM, UNAUTHORIZED DISCLOSURE OF CUSTOMER CONTENT, OR FOR INTERRUPTED BEACH REACH PLATFORM, OR FROM ANY DEFECT, ERROR, OR MALFUNCTION OF THE BEACH REACH PLATFORM, EVEN IF BEACH REACH HAS BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT WITH RESPECT TO CUSTOMER’S OBLIGATION TO INDEMNIFY BEACH REACH UNDER ARTICLE IX OF THIS AGREEMENT, AND WITHOUT LIMITING ANY OTHER RIGHTS, REMEDIES, LIMITATIONS, OR RESTRICTIONS IN THIS AGREEMENT OR UNDER LAW, A PARTY WILL NOT BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY THEORY OF LIABILITY FOR ANY AMOUNT, REGARDLESS OF THE NUMBER OF CLAIMS ALLEGED, IN EXCESS OF TWENTY-FIVE DOLLARS.
Customer shall defend, indemnify and hold harmless BEACH REACH, its affiliates, member, and service providers (of hosting services) and their respective officers, directors, employees, agents, and representatives for all damages, costs, liabilities, and expenses (including reasonable attorneys' fees) settlements or judgments arising out of a claim by a third party that arises from Customer’s violation of this Agreement.
BEACH REACH may suspend, cancel or terminate Customer’s access to the BEACH REACH Platform at BEACH REACH’s sole discretion and without notice to Customer.
11.1 Safe and Legal Use of the BEACH REACH Platform. At all times while using and/or interacting with the BEACH REACH Application and other Users of the BEACH REACH Application, Customer agrees to act in a safe and legal manner and never to engage in any conduct which may possibly (whether forseeable or not) injure or otherwise harm (e.g. bodily injury, reputational injury, emotional distress, etc.) a third party, including other Users of the BEACH REACH Platform as well as unassociated third parties. Customer agrees to never violate the rights of any third party when using and/or interacting with the BEACH REACH Platform. Customer agrees never to encourage any other user of the BEACH REACH Platform to violate these Terms and Conditions. Customer agrees to use the BEACH REACH Platform in a safe manner, and never to interact with the BEACH REACH Application while driving. Customer acknowledges and agrees that Customer’s use of the BEACH REACH Platform is done at Customer’s risk and that Customer accepts sole responsibility for any damages that result from Customer’s use of the BEACH REACH Platform, including damages to third parties that arise from such use.
11.2 Compliance with Applicable Law. The Parties shall at all times comply with all applicable laws and regulations in connection with its use of the BEACH REACH Platform.
11.4 No Third Party Beneficiaries. This Agreement shall inure to the benefit of and shall be binding upon the Parties' and their respective permitted successors and assigns. There are no third party beneficiaries to this Agreement.
11.5 Severability/Waivers. If any provision of this Agreement shall be determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be automatically reformed and construed so as to be valid, legal, operative, and enforceable to the maximum extent permitted by applicable law while preserving its original intent. The invalidity, illegality or unenforceability of any part of this Agreement shall not render invalid, illegal or unenforceable the remainder of this Agreement. Additionally, no waiver of any provision of this Agreement or any rights or obligations of either Party hereunder shall be effective, except pursuant to a written instrument signed by the Party waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purposes stated in such writing.
11.6 Assignment. This Agreement may not be assigned or transferred by Customer, including by operation of law, without the prior written consent of BEACH REACH. BEACH REACH may freely assign this Agreement to its survivors, successors, assigns, merging entities, affiliates, purchasers, etc.
11.7 Electronic Acknowledgement. Customer may electronically acknowledge Customer’s consent to the terms of this Agreement by any means that demonstrate acknowledgement to this Agreement, including by clicking a box or button labeled "I Agree," or similar language on any user interface of the BEACH REACH Platform which provides this Agreement (or a link hereto). Use of the BEACH REACH Platform, whether before, after or without such acknowledgment, also constitutes an agreement by Customer to the terms of this Agreement.
11.8 Choice of Law and Forum. This Agreement shall be governed and interpreted in accordance with the laws of the State of South Carolina without regard to conflict of law principles. Any litigation arising out of or connected to this Agreement shall be brought in a court of competent jurisdiction in Charleston County, South Carolina.
11.9 Survival. The provisions of this Agreement, which by their terms or nature extend beyond the termination of this Agreement (including without limitation Sections 3.4, Articles VI, VIII, IX, and this Section 11.10), shall survive expiration or termination of this Agreement regardless of the cause of such termination.
11.10 Force Majeure. If either Party hereto shall be delayed or hindered in, or prevented from, the performance of any act required hereunder for any reason beyond such Party's reasonable control, including but not limited to, strike, lockouts, labor troubles, governmental or judicial actions or orders, riots, insurrections, war, acts of God, inclement weather, or other reason beyond the Party's control (a "Force Majeure Event") then such Party's performance shall be excused for the period of the disability. The Party affected by the Force Majeure Event shall notify the other Party of such Force Majeure Event as provided for herein.
11.11 Relationship of the Parties. Nothing in this Agreement shall be deemed to create any type of agency, joint venture, or partnership between Customer and BEACH REACH. Neither Customer nor BEACH REACH shall have any right or authority to bind or obligate the other in any manner to any third party.
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