Membership Agreement - The Surf Society
The Surf Society
Membership Agreement And Contract
This contract (the “Contract”) sets forth the terms and conditions by which You, the Applicant (hereinafter referred as “Member” or “I”) may rent surf equipment from The Surf Society. It is effective as of the date of Member’s completed checkout via The Surf Society website or in-person payment of the subscription or membership fee (hereinafter referred to as “Fees”). The terms and conditions that by their nature survive termination shall survive termination of this Contract.
1. APPLICATION. I apply for membership in THE SURF SOCIETY to rent surfboards or other sports related equipment (the “Equipment”). I represent and warrant that I am 18 years of age or older and all facts and information set forth above and/or in the Membership Application dated as of the payment for my Membership are true, correct and complete. The Application is incorporated by reference and made a part of this contract.
2. PAYMENT. I must pay the Total Due Today for an Annual Membership upon signing this Contract.
3. TERM. Pre-Paid memberships will have a term of exactly 12 months. Memberships may thereafter be renewed in writing at the then current membership rate.
4. CANCELLATION. I (or my legal representative) may cancel this Contract without penalty in accordance with the following:
a) Within three (3) business days after signing this Contract and receiving a fully completed copy of this Contract, as long as no equipment was taken or any and all equipment has been returned to The Surf Society. Upon such cancellation I will receive a full refund of all monies paid, including initiation fees, if any.
b) If I die or become permanently disabled. A permanent disability means a condition which precludes me from using The Surf Society’s services for six (6) months or more, and the condition is verified by a physician. Upon the cancellation under this Paragraph 4b, The Surf Society shall refund to me all monies paid in excess of an amount computed by dividing the full contract price, including any initiation fee, by the number of weeks in the contract term, and multiplying the result by the number of weeks elapsed in the contract term, less an administrative fee of fifty ($50) Dollars and less the replacement cost of any piece of equipment the member has failed to return to The Surf Society. The Surf Society may require, at its expense, a physician examination of me by a physician mutually agreed upon, to verify my disability, and I hereby consent to such examination.
c) If I move more than fifty (50) miles away from a The Surf Society sanctioned location. Upon cancellation under this Paragraph 4c, The Surf Society shall refund monies using the same computation described in Paragraph 5b above.
d) If The Surf Society closes and ceases operations for more than thirty (30) days, I may cancel this contract upon written notice to The Surf Society. Upon cancellation under this Paragraph 4d., I shall be entitled to a refund of all monies paid in excess of an amount computed by dividing the full contract price, including any initiation fee, by the number of weeks in the contract term and multiplying the result by the number of weeks elapsed in the contract term less the replacement cost of any piece of equipment the member has failed to return to The Surf Society.
e) The member shall notify The Surf Society of cancellation in writing, by certified mail, return receipt requested, or by personal delivery to the address specified in The Surf Society contract; all money to be refunded upon cancellation of The Surf Society contract shall be paid within forty (40) days of receipt of the notice of cancellation; if member has executed a credit, lien, or automatic funds transfer agreement with The Surf Society to pay for The Surf Society services, any negotiable instrument or credit or lien agreement executed by the member shall also be returned and any automatic transfer shall be canceled within forty (40) days after the cancellation.
f) THE SURF SOCIETY MAY CANCEL THIS CONTRACT AT ANY TIME FOR ANY REASON. Upon such cancellation I will receive a refund for all monies paid in excess of an amount computed by dividing the full contract price, including any initiation fee, by the number of weeks in the contract term, and multiplying the result by the number of weeks elapsed in the contract term less the replacement cost of any piece of equipment the member has failed to return to The Surf Society.
g) BUYERS RIGHT TO CANCEL: IF YOU WISH TO CANCEL THIS CONTRACT, YOU MAY CANCEL IT BY DELIVERING OR MAILING BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, WRITTEN NOTICE TO THE SURF SOCIETY. THIS NOTICE MUST SAY THAT YOU DO NOT WISH TO BE BOUND BY THIS CONTRACT. THE NOTICE MUST BE DELIVERED OR MAILED TO THE SURF SOCIETY AT 5509 LA JOLLA BLVD, LA JOLLA, CA 92037. IN THE CASE OF TERMINATION UNDER PARAGRAPH 4a., THIS NOTICE MUST BE DELIVERED OR MAILED BEFORE 12:00 MIDNIGHT OF THE THIRD BUSINESS DAY AFTER YOU SIGN AND RECEIVE A COPY OF THIS CONTRACT. IN SOME CASES, AS DESCRIBED IN PARAGRAPHS 4b., c., and d.. ABOVE YOU MAY ALSO CANCEL THIS CONTRACT LATER IF THE SURF SOCIETY MOVES OUT OF SAN DIEGO COUNTY OR GOES OUT OF BUSINESS, IF YOU DIE OR BECOME PERMANENTLY DISABLED, OR IF YOU MOVE FROM THE AREA. IF YOU CANCEL FOR ANY OF THESE REASONS, YOUR NOTICE SHOULD STATE THE REASON AND THE SURF SOCIETY MAY BE ENTITLED TO A CERTAIN PORTION OF THE CONTRACT PRICE. YOU MAY ALSO BRING A PRIVATE CAUSE OF ACTION. IF YOUR RIGHTS ARE VIOLATED, YOU MAY CONTACT THE STATE BUREAU OF CONSUMER PROTECTION OR YOUR LOCAL DISTRICT ATTORNEY.
h. ANY MEMBER WHO CANCELS WITHOUT THE ABOVE APPROVED EXEMPTIONS OR WHO DEFAULTS ON PAYMENTS OR WHO FAILS TO RETURN EQUIPMENT ON OR BEFORE THE END OF THE TERM OF THEIR SUBSCRIPTION SHALL BE SUBJECT TO ADDITIONAL FEES, PENALTIES AND LOSS OF DEPOSIT. UNREPAIRABLE OR UNRETURNED EQUIPMENT SHALL BE SUBJECT TO PENALTIES OF NO LESS THAN THE MSRP REPLACEMENT COST OF EQUIPMENT PLUS A $50 REPLACEMENT FEE.
i. NOTICE: ANY HOLDER OF THIS CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.
5. FEE GUARANTEE. Membership fees may be modified from time-to-time by The Surf Society. However, no membership fee change will be applicable to me during the initial term of this Contract (but will be effective for any renewal periods).
6. DEFAULT/REMEDIES. Member agrees to pay reasonable attorney fees, legal expenses, and other lawful collection costs and expenses of collection incurred after a material breach of this Contract including but not limited to collection of equipment replacement cost plus fees for any equipment Member fails to return at the conclusion of Members contract.
7. MEMBERSHIP PRIVILEGES. I will have access to member benefits such as special event invites, surf shop discounts, The Surf Society clothing discounts, and other benefits at no additional charge, as same may be available from time-to-time. Membership does not include lessons, classes, premium fins, leashes, or board bags, some or all of which may be made available for additional charges. Not all programs, benefits, facilities, equipment, etc. will be available at all times. Memberships are not assignable or transferable and any attempted transfer or assignment shall be null and void.
8. MEMBER’S RESPONSIBILITY. All use of Equipment shall be undertaken at my sole risk, and The Surf Society and/or its Managers shall not be liable for any harm, injuries or damage to me or my property, or be subject to any claim, demand, liability or damages whatsoever, including, without limitation, those resulting from acts of active or passive negligence on the part of The Surf Society and/or its Managers, its successors or assigns, as well as its officers and agents, for all such claims, demands, liabilities, damages, actions or causes of actions. It is specifically agreed that The Surf Society and/or its Manager shall not be responsible or liable for articles lost, damaged or stolen in, about or in connection with The Surf Society nor for loss or damage to any other of my property, including automobiles and contents. It is also agreed that any damages to The Surf Society and/or its Managers, or its contents, or property or the property of any member by another member is the sole responsibility of the offending member. The foregoing notwithstanding, neither The Surf Society nor its Manager shall be relieved by this Paragraph 11 from liability for its own gross negligence and/or willful misconduct.
9. RULES AND REGULATIONS. I acknowledge that The Surf Society operates under rules and regulations established for the safety, comfort and protection of members or other patrons and I will abide by and be bound by all stated rules and regulations, as well as by rules and regulations subsequently approved and posted or published by The Surf Society. Rules and regulations of The Surf Society, in effect from time-to-time, are incorporated into this Contract by reference and made a part hereof. Locations, equipment, amenities, hours, service, regulations, and policies are subject to change, without prior notice, at the sole discretion of The Surf Society, and I accept such reasonable changes as a condition of membership.
10. DAMAGES. I acknowledge that reimbursement or replacement costs for any damage, destruction or theft to any The Surf Society equipment will be the sole responsibility of the Member and that Member will be charged to their account or credit card accordingly.
a. Repairs on damaged Equipment must be performed by The Surf Society. The Surf Society will charge Member actual cost of repairs without additional markup. Home or do-it-yourself repairs performed by or at the direction of Member will not be accepted.
b. I agree not to modify, change or alter any piece of equipment. I agree to not add any artwork, color, stickers or adhesives to any Equipment. Failure to comply may result in additional fees.
c. Due to extreme devaluation and decreased performance, Equipment that has been broken, damaged, buckled, sun damaged, delaminated, or require any major repair that would cost more than the replacement value of the Equipment will be deemed unrepairable. Members will be responsible for paying the full replacement cost of any unrepairable piece of equipment.
d. Member will be responsible for the replacement cost plus additional fees as described in 4h above of any lost or stolen piece of equipment.
e. Member shall be responsible for the replacement cost plus additional fees as described in 4h above of any piece of equipment that is not returned on or before the end of their contract period.
f. Member assumes responsibility for acquiring from The Surf Society written or electronic confirmation of any and all equipment returns and that said written confirmation from The Surf Society shall be the only accepted form of receipt by The Surf Society that equipment has been returned and received by The Surf Society.
g. Member shall provide to The Surf Society written confirmation for any and all pieces of equipment that member takes into their possession as part of this agreement.
11. GENERAL PROVISIONS.
a) I acknowledge that by receiving Equipment I certify it is in full working condition and without any undocumented damage or alterations. No promises, representations or warranties have been made to Member by The Surf Society or its Managers about the Equipment, its safety, appropriateness for Member ability or surf conditions. The Surf Society specifically disclaims all implied warranties including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, safety, and non-infringement. Member assumes any and all risk related to the Equipment, whether the Equipment is used alone or in combination with other products or equipment.
b) I acknowledge and agree that the Initiation Fee, if applicable, represents a reasonable charge for initiating my membership considering the time and effort required of The Surf Society.
c) I acknowledge that it has been explained to me that this is a legally binding and enforceable contract and that I have agreed to maintain my membership for the period of time specified.
d) This Contract sets forth the entire agreement between me and The Surf Society regarding my membership and any and all prior discussions, agreements, understandings or correspondence are hereby made null and void.
e) This Contract may be amended, modified or rescinded, or any rights hereunder waived, only by written agreement signed by me and The Surf Society.
f) If any term or provision of this Contract is found to be invalid, illegal or unenforceable, in whole or in part, the rest and remainder of this Contract shall remain in full force and effect to the fullest extent permitted by law.
g) If The Surf Society incurs any legal fees associated with the enforcement of this Agreement or any rights under this Agreement, Member shall be responsible for all attorneys’ fees and any court, arbitration, mediation, or other litigation expenses.
h) IN NO EVENT SHALL THE SURF SOCIETY, ITS MANAGERS OR ITS EMPLOYEES BE LIABLE TO MEMBER FOR ANY DAMAGES WHATSOEVER INCLUDING INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR LOSS OF DATA, ARISING OUT OF, OR AS A RESULT OF, THE LEASE, DELIVERY, SERVICING, USE OR LOSS OF THE EQUIPMENT LEASED HEREUNDER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.
i) Member hereby expressly, knowingly and voluntarily agrees to indemnify and hold The Surf Society and its managers and employees harmless for any and all liability for such injury, loss, or damage whatsoever, whether the injury, loss, or damage results from negligence or fault of either party. Member will be responsible for any and all costs and expenses incurred by The Surf Society or its managers or employees for repairing or replacing the Equipment or any other property or persons who were harmed by the Equipment.
j) This Contract (and any other documents referred to herein) shall in all respects be interpreted, enforced and governed by and under the laws of the State of California applicable to instruments, persons and transactions which have legal contacts and relationships solely within the State of California and the laws of the United States of America. Any dispute regarding this Contract shall be brought exclusively in the state or federal courts residing in San Diego County in the State of California.
k) Member represents and warrants that they assume all risk associated with the Equipment and this Contract, have reviewed and signed the Release and Waiver Agreement which is attached hereto as Exhibit A and incorporated herein by reference.
Member agrees, by checking the “Accept Terms & Conditions” checkbox during the checkout process on The Surf Society website as part of initiating a membership in The Surf Society, that Member has read this agreement in its entirety and agrees to all the aforementioned terms and conditions of this contract. Member further asserts that Member understand that Member is responsible for all reasonable collection fees, court costs and attorney fees associated with this Contract or a breach of this Contract, including any unpaid balances due according to this Contract and/or the replacement cost of any unreturned equipment according to this contact.