THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. 

These terms and conditions (these “Terms of Sale”) apply to the purchase and sale of products through https://welobster.com/ (the “Site”). These Terms of Sale are subject to change by Rally Cap LLC dba WeLobster (“WeLobster”, “we”, “our” or “us”) without prior written notice at any time, in our sole discretion. The latest version of these Terms of Sale will be posted on this Site, and you should review these Terms of Sale before purchasing any products that are available through this Site. Your continued use of this Site after a posted change in these Terms of Sale will constitute your acceptance of and agreement to such changes. These Terms of Sale are an integral part of the Website Terms of Use that apply generally to the use of our Site. You should also carefully review our Privacy Policy before placing an order for products through this Site.

BY PLACING AN ORDER FOR PRODUCTS FROM THIS SITE, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. YOU MAY NOT ORDER OR OBTAIN PRODUCTS FROM THIS SITE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH WELOBSTER, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS SITE’S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.

 

1. Order Acceptance and Cancellation.

You agree that your order is an offer to buy all products listed in your order under these Terms of Sale. All orders must be accepted by us or we will not be obligated to sell the products to you. We may choose not to accept any orders for any reason or for no reason, in our sole discretion. After having received your order, we will send you a confirmation email with your order number and details of the items you have ordered. Acceptance of your order and the formation of the contract of sale between WeLobster and you will not take place unless and until you have received your order confirmation email. You have the option to cancel your order by emailing tyler@welobster.com at any time before we have sent your order confirmation email.

 

2. Prices and Payment Terms.

All prices posted on this Site are subject to change without notice. The price charged for a product will be the price in effect at the time the order is placed and will be set out in your order confirmation email. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total and will be itemized in your shopping cart and in your order confirmation email. We are not responsible for pricing, typographical, or other errors in any offer by us and we reserve the right to cancel any orders arising from such errors. Terms of payment are within our sole discretion and payment must be received by us before our acceptance of an order. You represent and warrant that (i) the credit card information you supply to us is true, correct, and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any, shipping and handling charges and any other amounts included in your order confirmation email.

3. Shipments; Delivery; Title and Risk of Loss.

Currently, we can only ship to the contiguous United States (i.e., excluding Alaska and Hawaii). We will arrange for shipment of the products to you within that area. Please check the individual product page for specific delivery options. You will pay all shipping and handling charges specified during the ordering process. Title and risk of loss pass to you upon our transfer of the products to the carrier. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.

4. LIMITED WARRANTY.

THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.  WE WARRANT THAT LIVE LOBSTERS ARRIVE ALIVE AND ALL PRODUCTS ARRIVE FRESH. WELOBSTER MAKES NO OTHER WARRANTIES OF ANY KIND OR NATURE.  WITHOUT LIMITING THE FOREGOING, WE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  SOME STATES DO NOT ALLOW LIMITATIONS IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. OUR RESPONSIBILITY FOR DEFECTIVE PRODUCTS IS LIMITED TO REPLACEMENT OR REFUND AS SET FORTH IN THESE TERMS OF SALE BELOW.

This limited warranty extends only to the original purchaser of products from the Site. It does not extend to any subsequent or other owner or transferee of the product.  With respect to any defective products, we will, in our sole discretion either replace such products free of charge or refund the purchase price of such products as set forth in Section 5 of these Terms of Sale below. We will also pay for shipping and handling fees to return any replacement product to you if we elect to replace the defective products.

5. Returns and Refunds.

Given the nature of our products, we do not accept returns. WeLobster will issue a credit or refund on live lobsters that were not alive upon delivery and frozen fish that arrived unthawed provided that in each case, you notify us on the day of delivery of the shipment and pictures or video are provided to us on the day of delivery.  We will not be able to honor any refunds without photographs and videos of the product in question. We may request that the product be shipped back to us for inspection. If you dispose of product and packaging prior to notifying us of your problem, you waive your rights for a refund of any kind. We will not issue a credit or refund for products if you do not prepare them on the day of arrival. Your refund will be credited back to the same payment method used to make the original purchase on the Site.

WeLobster will not be held responsible, and will not issue credits or refunds for any of the following circumstances:

 

• Live lobsters that die after delivery if you choose to postpone cooking them other than the day of delivery. If you choose to store live lobsters until the following day or later, you do so at your own risk.
• Product packages left outside for more than an hour. Our products can spoil or otherwise be damaged if not kept in temperature regulated conditions so please take precautions when scheduling delivery and let recipients know the delivery contains perishable contents. We are not responsible for contacting recipients prior, during or after delivery of any shipment.
• Product delivery that is delayed or hindered due to federal holidays, weather-related issues, or other delays outside of WeLobster’s control.
• Product that is stolen after delivery to the address of record.
• You are solely responsible for providing us with the correct shipping address when placing your order. We will not refund or reimburse orders that were not delivered on time due to an incorrect address.

6. Limitation of liability.

THE REMEDIES DESCRIBED IN SECTION 5 ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF OUR LIMITED WARRANTY. OUR LIABILITY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR THE DEFECTIVE PRODUCT THAT YOU HAVE PURCHASED THROUGH THE SITE, NOR WILL WE UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

7. Products Not for Resale or Export.

You agree to comply with all applicable laws and regulations of the various states and of the United States. You represent and warrant that you are buying products from the Site for your own use only, and not for resale or export.

8. Privacy.

Our Privacy Policy, https://welobster-co.myshopify.com/pages/privacy-policy, governs the processing of all personal data collected from you in connection with your purchase of products through the Site.

9. Governing Law and Jurisdiction.

All matters arising out of or relating to these Terms of Sale are governed by and construed in accordance with the internal laws of the State of New Hampshire without giving effect to any choice or conflict of law provision or rule (whether of the State of New Hampshire or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New Hampshire.

10. Dispute Resolution and Binding Arbitration.

YOU AND WELOBSTER ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.

The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this Section. (The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.

The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.

You may elect to pursue your claim in small-claims court rather than arbitration if you provide us with written notice of your intention do so within 60 days of your purchase. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy.

You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR WELOBSTER WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.

If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.

11. Assignment.

You will not assign any of your rights or delegate any of your obligations under these Terms of Sale without our prior written consent in each instance. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves you of any of your obligations under these Terms of Sale.

12. No Waivers.

The failure by us to enforce any right or provision of these Terms of Sale will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of WeLobster.

13. No Third-Party Beneficiaries.

These Terms of Sale do not and are not intended to confer any rights or remedies upon any person other than you.

14. Notices. 

To You. We may provide any notice to you under these Terms of Sale by: (i) sending a message to the email address you provide or (ii) by posting to the Site. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.

 

To Us. To give us notice under these Terms of Sale, you must contact us by email transmission to tyler@welobster.com. We may update our contact information for notices to us by posting a notice on the Site. Notices provided by email transmission will be effective one business day after they are sent.

15. Severability. 

If any provision of these Terms of Sale is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms of Sale and will not affect the validity or enforceability of the remaining provisions of these Terms of Sale.

16. Entire Agreement.

Our order confirmation, these Terms of Sale, our Website Terms of Use and our Privacy Policy will be deemed the final and integrated agreement between you and us.