Terms & Conditions
Throughout the following terms and conditions, SWEET MERRY BERRY will be referred to as "SWEET MERRY BERRY" and the purchaser identified on the face of this document shall be identified as "customer."
1. These Terms Prevail. These terms and conditions shall prevail in any conflict between them and any terms in a purchase order, confirmation, acknowledgment, or other form or correspondence prepared by customer. No change in the terms of this order, and no additional or different terms, whether or not they materially alter the order, shall be binding upon SWEET MERRY BERRY unless such changes or additional or different terms are expressly agreed to in writing by SWEET MERRY BERRY.
2. Order Acceptance. All solicitations and purchases of SWEET MERRY BERRY product on www.sweetmerryberry.com and affiliated sites are undertaken and completed in Long Beach, New York and/or at the fulfillment center(s) of the vendors (brands). The receipt of an order on SWEET MERRY BERRY’s website, www.sweetmerryberry.com, will not constitute acceptance of the order until such time as it is formally approved by SWEET MERRY BERRY at its headquarters. SWEET MERRY BERRY's prices exclude excise, sales, use, GST or similar taxes, freight and other delivery expenses, insurance charges and duties, all of which shall be borne by customer.
3. Delivery & Acceptance. Unless otherwise provided by SWEET MERRY BERRY in writing, all product shipments shall be made Carriage Paid to Destination (CPT-Destination) from SWEET MERRY BERRY’s facility in Long Beach, New York, and/or fulfillment center(s) from all other vendors at which point the title, risk of loss or damage shall pass to the customer.
4. Non-Diversion. Customer’s purchase of SWEET MERRY BERRY product is for personal use and not for resale. Customer agrees not to directly or indirectly advertise or solicit sales or sell SWEET MERRY BERRY product purchased from SWEET MERRY BERRY.
5. Warranty. Every SWEET MERRY BERRY product sells is covered by a minimum one-year warranty from the date of purchase. The warranty covers defect of workmanship and materials, but DOES NOT cover damage caused by accident, improper care, negligence, normal wear and tear, or the natural breakdown of colors and materials through time, exposure, or extensive use. All other products sold on website from other vendors are covered separately by their own manufacturer's warranty. Please see additional pages for more info.
6. Return Policy & Warranty Returns. See SWEET MERRY BERRY’s Return and Warranty Policy.
7. Force Majeure. In the event of a disruption or discontinuance of SWEET MERRY BERRY's business in whole or in substantial part, either temporarily or permanently, by reason of fire, flood, earthquake, war, governmental restrictions or laws, act of God, embargo labor trouble, or strikes or other cause of like or unlike nature beyond SWEET MERRY BERRY's control, SWEET MERRY BERRY shall have the option of canceling delivery of all or any part of the merchandise not yet delivered with no fee or penalty of any kind imposed by customer.
8. No Implied Warranty. SWEET MERRY BERRY grants no warranties or conditions, expressed, implied, statutory or otherwise regarding the merchandise, its fitness for any particular purpose, quality or merchantability. SWEET MERRY BERRY shall not be liable for any special, consequential, punitive, incidental, or indirect damages, lost profits, the cost of procurement of substitute products or other services however caused or any theory of liability arising in any way out of this agreement. customer agrees that SWEET MERRY BERRY's liability under this agreement regardless of the form of action shall in no event exceed the price paid by customer for the subject merchandise. This limitation shall apply even if SWEET MERRY BERRY has been advised in advance of the possibility of such damages and not withstanding any failure of essential purposes of any limited remedy provided herein.
9. Limitation of Liability. IN NO EVENT SHALL SUNRISE SURF SHOP BE LIABLE TO CUSTOMER FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE, INCIDENTAL, OR SPECIAL DAMAGES, OR ANY DAMAGES WHATSOEVER RESULTING FROM DELAYS OR SHIPMENT OF PRODUCTS, EVEN IF SWEET MERRY BERRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SWEET MERRY BERRY’S LIABILITY FOR ANY PRODUCT (WHETHER ASSERTED AS A TORT CLAIM, A CONTRACT CLAIM OR OTHERWISE) EXCEED THE AMOUNTS PAID TO SWEET MERRY BERRY FOR SUCH PRODUCT. NOT WITHSTANDING ANYTHING IN THIS AGREEMENT, IN NO EVENT SHALL SWEET MERRY BERRY’S LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY CUSTOMER TO SWEET MERRY BERRY FOR PRODUCT IN THE LAST TWELVE (12) MONTHS. IN NO EVENT WILL SWEET MERRY BERRY BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY CUSTOMER. IN NO EVENT SHALL SWEET MERRY BERRY BE LIABLE FOR DAMAGES ARISING OUT OF ANY LATE DELIVERY. THE LIMITATIONS SET FORTH HEREIN SHALL APPLY TO ALL LIABILITIES THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST CUSTOMER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE LIMITATION SET FORTH IN THIS SECTION SHALL APPLY WHERE THE DAMAGES ARISE OUT OF OR RELATED TO THIS AGREEMENT.
10. Indemnification. Customer shall indemnify, defend, and hold SWEET MERRY BERRY and SWEET MERRY BERRY’s officers, agents other representatives and licensors harmless from all demands, claims, actions, causes of actions, proceedings, suits, assessments, losses, damages, liabilities, settlements, judgments, fines, penalties, interest, costs and expenses incurred (including fees and disbursements of legal counsel) of every kind (i) based upon personal injury or death or injury to property to the extent any of the foregoing is proximately caused customer’s misuse of the product or by the negligent or willful acts or omissions by the customer, or (ii) based on any breach of this Agreement by customer.
11. Non-Waiver. The failure of SWEET MERRY BERRY to insist upon strict performance of any of the terms and conditions of this order or to exercise any rights or remedies, shall not be construed as a waiver of its right to assert any of same or to rely on any such terms and conditions at any time thereafter.
12. Choice of Law and Venue. Any and all disputes arising under this invoice or a purchase order of vendor shall be subject to the laws of the State of Florida and SWEET MERRY BERRY and purchaser agree that any and all disputes arising hereunder or under any purchase order between the parties shall be subject to the exclusive jurisdiction of an appropriate court in Long Beach, New York, and the parties hereby waive their right to have any such claim tried or brought elsewhere. The prevailing party in any action under this agreement shall be entitled to recover reasonable attorney’s fees.
13. Severability. If any of the terms and conditions of this Agreement are held to be invalid under any applicable statute or rule of law, they are, to that extent, deemed omitted.
All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code (collectively, “Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained on the Site is owned, controlled or licensed by or to SWEET MERRY BERRY, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.
You may use information on SWEET MERRY BERRY products and services (such as data sheets, knowledge base articles, and similar materials) purposely made available by SWEET MERRY BERRY for downloading from the Site, provided that you (1) not remove any proprietary notice language in all copies of such documents, (2) use such information only for your personal, non-commercial informational purpose and do not copy or post such information on any networked computer or broadcast it in any media, (3) make no modifications to any such information, and (4) not make any additional representations or warranties relating to such documents.
Your Use of the Site
You may not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Site or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Site or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Site. SWEET MERRY BERRY reserves the right to bar any such activity.
You may not attempt to gain unauthorized access to any portion or feature of the Site, or any other systems or networks connected to the Site or to any SWEET MERRY BERRY server, or to any of the services offered on or through the Site, by hacking, password “mining” or any other illegitimate means.
You may not probe, scan or test the vulnerability of the Site or any network connected to the Site, nor breach the security or authentication measures on the Site or any network connected to the Site. You may not reverse look-up, trace or seek to trace any information on any other user of or visitor to the Site, or any other customer of SWEET MERRY BERRY, including any SWEET MERRY BERRY account not owned by you, to its source, or exploit the Site or any service or information made available or offered by or through the Site, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information, as provided for by the Site.
Harassment in any manner or form on the site, including via e-mail or chat or by obscene or abusive language is strictly forbidden. Impersonation of others, including a SWEET MERRY BERRY or other employee, host or representative, as well as other members or visitors of the site, is prohibited. You may not upload to, distribute, or otherwise publish through the site any content that is libelous, defamatory, obscene, threatening, invasive of privacy or publicity rights, abusive, illegal, or otherwise objectionable, which may constitute or encourage a criminal offense, violate the rights of any party, or which may otherwise give rise to liability or violate the law. You may not upload commercial content on the site or use the site to solicit others to join or become members of any other commercial online service or other organization.
SWEET MERRY BERRY does not and cannot review all communications and materials posted to or created by users accessing the site, and is not in any manner responsible for the content of these communications and materials. You acknowledge that by providing you with the ability to view and distribute user generated content on the site, SWEET MERRY BERRY is merely acting as a passive conduit for such distribution and is not undertaking any obligation or liability relating to any contents or activities on the site. However, SWEET MERRY BERRY reserves the right to block or remove communications or materials that it determines to be (a) abusive, defamatory, or obscene, in its sole opinion, (b) fraudulent, deceptive or misleading, (c) in violation of copyright, trademark or other intellectual property right of another or (d) offensive or otherwise unacceptable to SWEET MERRY BERRY at its sole discretion.
In an attempt to provide increased value to our visitors, SWEET MERRY BERRY may choose various third-party websites to link to from its own site. However, even if the third party is affiliated with SWEET MERRY BERRY, SWEET MERRY BERRY has no control over these linked sites, all of which have separate privacy and data collection practices, independent of SWEET MERRY BERRY. SWEET MERRY BERRY has no responsibility or liability for these independent policies or actions and is not responsible for the privacy practices or content of such websites. These linked sites are only for your convenience and therefore you access them at your own risk.
You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or SWEET MERRY BERRY’s systems or networks, or any systems or networks connected to the Site or to SWEET MERRY BERRY.
You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any transaction being conducted on the Site, or with any other person’s use of the Site.
You may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to SWEET MERRY BERRY on or through the Site or any service offered on or through the Site. You may not pretend that you are, or that you represent, someone else, or impersonate any other individual or entity.
Purchases; Other Terms and Conditions
SWEET MERRY BERRY’s obligations, if any, with regard to its products and services are governed solely by the agreements pursuant to which they are provided, and nothing on this Site should be construed to alter such agreements. SWEET MERRY BERRY may make changes to any products or services offered on the Site, or to the applicable prices for any such products or services, at any time, without notice. The materials on the Site with respect to products and services may be out of date, and SWEET MERRY BERRY makes no commitment to update the materials on the Site with respect to such products and services. Additional terms and conditions, incorporated in the Legal section of the Site, may apply. Each of these policies may be changed from time to time and are effective immediately upon posting such changes on the Site.
Accounts, Passwords and Security
Certain features or services offered on or through the Site may require you to open an account (including setting up an SWEET MERRY BERRY ID and password). You are entirely responsible for maintaining the confidentiality of the information you hold for your account, including your password, and for any and all activity that occurs under your account as a result of your failing to keep this information secure and confidential. You agree to notify SWEET MERRY BERRY immediately of any unauthorized use of your account or password, or any other breach of security. You may be held liable for losses incurred by SWEET MERRY BERRY or any other user of or visitor to the Site due to someone else using your SWEET MERRY BERRY ID, password or account as a result of your failing to keep your account information secure and confidential.
You may not use anyone else’s SWEET MERRY BERRY ID, password or account at any time without the express permission and consent of the holder of that SWEET MERRY BERRY ID, password or account. SWEET MERRY BERRY cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.
Links to Other Sites and to the SWEET MERRY BERRY Site
This Site may contain links to other independent third-party Web sites (“Linked Sites”). These Linked Sites are provided solely as a convenience to our visitors. Such Linked Sites are not under SWEET MERRY BERRY’s control, and SWEET MERRY BERRY is not responsible for and does not endorse the content of such Linked Sites, including any information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites.
SWEET MERRY BERRY DOES NOT PROMISE THAT THE SITE OR ANY CONTENT, SERVICE OR FEATURE OF THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE SITE WILL PROVIDE SPECIFIC RESULTS. THE SITE AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. ALL INFORMATION PROVIDED ON THE SITE IS SUBJECT TO CHANGE WITHOUT NOTICE. SUNRISE SURF SHOP CANNOT ENSURE THAT ANY FILES OR OTHER DATA YOU DOWNLOAD FROM THE SITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. SUNRISE SURF SHOP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SUNRISE SURF SHOP DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SITE AND/OR ANY SUNRISE SURF SHOP SERVICES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST SUNRISE SURF SHOP FOR DISSATISFACTION WITH THE SITE OR ANY CONTENT IS TO STOP USING THE SITE OR ANY SUCH CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.
The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.
SWEET MERRY BERRY reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Site, or any portion of the Site, for any reason; (2) to modify or change the Site, or any portion of the Site, and any applicable policies or terms; and (3) to interrupt the operation of the Site, or any portion of the Site, as necessary to perform routine or non-routine maintenance, error correction, or other changes.
In the event a SWEET MERRY BERRY product is listed at an incorrect price due to a typographical error, error in pricing information received from our suppliers, or from a computer hack or other computer glitch, SWEET MERRY BERRY will have the right to refuse or cancel any orders placed for product listed at the incorrect price. SWEET MERRY BERRY will have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is cancelled, SWEET MERRY BERRY will issue a credit to your credit card account in the amount of the incorrect price.
Limitation of Liability
Except where prohibited by law, in no event will SWEET MERRY BERRY be liable to you for any special, indirect, consequential, exemplary, incidental or punitive damages, including lost profits, even if SWEET MERRY BERRY has been advised of the possibility of such damages.
You agree to indemnify and hold SWEET MERRY BERRY, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, parents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against SWEET MERRY BERRY by any third party due to or arising out of or in connection with your use of the Site.
SWEET MERRY BERRY may disclose any information we have about you (including your identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Site, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) SWEET MERRY BERRY’s rights or property, or the rights or property of visitors to or users of the Site, including SWEET MERRY BERRY’s customers. SWEET MERRY BERRY reserves the right at all times to disclose any information that SWEET MERRY BERRY deems necessary to comply with any applicable law, regulation, legal process or governmental request. SWEET MERRY BERRY also may disclose your information when SWEET MERRY BERRY determines that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes.
You agree that SWEET MERRY BERRY may, in its sole discretion and without prior notice, terminate your access to the Site, for cause, which includes (but is not limited to) (1) requests by law enforcement or other government agencies, (2) a request by you (self-initiated account deletions), (3) discontinuance or material modification of the Site or any service offered on or through the Site, or (4) unexpected technical issues or problems.
Governing Law; Dispute Resolution
Void Where Prohibited
SWEET MERRY BERRY administers and operates the Site from its location in Jacksonville Beach, Florida, in the United States of America; other SWEET MERRY BERRY sites may be administered and operated from various locations outside the United States. Although the Site is accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or on the Site are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. SWEET MERRY BERRY reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or service made on the Site is void where prohibited. If you choose to access the Site from outside the United States, you do so on your own initiative, and you are solely responsible for complying with applicable local laws.
You may not use or export or re-export any Content or any copy or adaptation of such Content, or any product or service offered on the Site, in violation of any applicable laws or regulations, including without limitation United States export laws and regulations.
SWEET MERRY BERRY provides access to SWEET MERRY BERRY international data and, therefore, may contain references or cross references to SWEET MERRY BERRY products, programs and services that are not announced in your country. Such reference does not imply that SWEET MERRY BERRY in your country intends to announce such products, programs or services.
SWEET MERRY BERRY is committed to improving the accessibility of our websites and electronic communications. Working with a retained accessibility consultant, SWEET MERRY BERRY is striving for the highest level of accessibility for people with disabilities.
Over time we will be implementing relevant portions of the Section 508 Web Accessibility Standards developed by the United States Access Board, as well as the World Wide Web Consortium's (W3C) Web Content Accessibility Guidelines 2.0. With our consultant’s assistance, we will test our materials with assistive technology such as screen readers and screen magnifiers, and with users with disabilities who use these technologies. These processes will promote accessibility for everyone, regardless of disability or device used to access information on our websites and electronic communications.
Below are some of the steps we are or will be taking to ensure the accessibility of our online materials.
All images will contain appropriate alternative text
Form elements will be properly labeled
Data tables will contain headers where appropriate
Headings will be used throughout the site
Multimedia (video or audio clips) will be captioned and/or described
All areas of the website will be operable without the use of a mouse
Foreground/background color schemes will provide adequate contrast
Information will not be conveyed through the use of color alone
Links will be worded to make sense when read out of context
A method will be provided to bypass repetitive navigational links
Text will be resizable in all browsers
Please be aware that our efforts are ongoing; as a result, there may be areas of our sites that are less accessible than others during a given period of time.
Feedback and Information
Any feedback you provide at this site will be deemed to be non-confidential. SWEET MERRY BERRY will be free to use such information on an unrestricted basis.