Last updated September 11, 2019
USER SHOULD READ BEFORE USING THE WEBSITE.
IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT USE THE WEBSITE.
Seashine Capital Management, LLC (“Seashine”, “We”, “Us”, “Our”) reserves the right, in its sole discretion, to modify, alter or otherwise update these Terms at any time. Such modifications shall be effective immediately upon posting. By using the Website after we have posted notice of such modifications, alterations or updates, you agree to be bound by such revised Terms.
Dispute Resolution and Arbitration
If you’re a resident of or have your principal place of business in the United States of America or any of its territories or possessions (the “U.S.”), you are agreeing to this Arbitration Agreement with Seashine. Otherwise, you are a non-U.S. user. Non-U.S. users also agree to the arbitration agreement and class action waiver. However, please note if you’re an EU Consumer (as defined below), some of these provisions may not apply to you and you may be entitled to specific rights under the mandatory laws of the country in which you live.
An EU Consumer means a natural person acting for purposes outside their trade, business, craft, or profession (as opposed to a User for business or commercial purposes) habitually residing in the European Economic Area.
You and Seashine agree that any dispute, claim, or controversy between you and Seashine arising in connection with or relating in any way to these Agreements or to your relationship with Seashine as a user of the Service (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of the Agreements) will be determined by mandatory binding individual (not class) arbitration. You and Seashine further agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the Arbitration Agreement or to the arbitrability of any claim or counterclaim. Arbitration is more informal than a lawsuit in court. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. There may be more limited discovery than in court. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award any relief, including declaratory or injunctive relief, benefiting anyone but the parties to the arbitration. This arbitration provision will survive termination of the Agreements.
Notwithstanding the clause above, you and Seashine both agree that nothing in this Arbitration Agreement will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to (i) bring an individual action in a U.S. small claims court or (ii) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator. In addition, this Arbitration Agreement doesn’t stop you or us from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf (or vice versa).
No Class Or Representative Proceedings: Class Action Waiver
YOU AND SEASHINE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and Seashine agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
Either you or we may start arbitration proceedings. Any arbitration between you and Seashine will take place under the Consumer Arbitration Rules of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”), as modified by this Arbitration Agreement. You and Seashine agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above). The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or you may call the AAA at 1-800-778-7879. Seashine can also help put you in touch with the AAA.
Whether you are a U.S. consumer or a U.S. business, any arbitration hearings will take place in the Superior Court of California of the County of Orange, provided that if the claim is for $1,000 or less, you may choose whether the arbitration will be conducted (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephonic hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If you are a consumer or a business with a residence outside of the U.S., the location of arbitration hearing will take place either in Orange County, California or by phone or videoconference, at your option and as permitted by the AAA Rules.
Each party is responsible for their own fees. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail, Federal Express, UPS, or Express Mail (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Seashine’s address for Notice is:
Seashine USA Inc., Attn: General Counsel
4 Park Plaza, Suite 650
Irvine, CA 92614
The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Seashine may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Seashine shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of the arbitrator’s decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law.
If this Arbitration Agreement is invalidated in whole or in part, the parties agree that the exclusive jurisdiction and venue described herein shall govern any claim in court arising out of or related to the Agreements.
Ability to Accept Terms
You affirm that you are either more than 18 years of age, or an emancipated minor, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms. In any case, you affirm that you are over the age of 13, as the Website is not intended for children under 13. If you are under 13 years of age, please do not use the Website.
Trademarks, Copyrights, and Restrictions
The Website is controlled and operated by Seashine Capital Management, LLC with principal offices located at 4 Park Plaza, Suite 650, Irvine, CA 92614. All content on the Website, including, but not limited to text, images, illustrations, audio clips, and video clips (the “Content”), is protected by copyrights, trademarks, service marks, and/or other intellectual property rights (which are governed by U.S. and worldwide copyright laws and treaty provisions, privacy and publicity laws, and communication regulations and statutes), and are owned and controlled by Seashine or its affiliates, or by third-party content providers, merchants, sponsors and licensors (collectively “Providers”) that have licensed their content or the right to market their products and/or services to Seashine. Content on the Website or any website owned, operated, licensed or controlled by the Providers is solely for your personal, non-commercial use. You may print a copy of the Content and/or information contained herein for your personal, non-commercial use only, but you may not copy, reproduce, republish, upload, post, transmit, distribute, and/or exploit the Content or information in any way (including by email or other electronic means) for commercial use without the prior written consent of Seashine or the Providers. You may request consent by email at [email protected].
Without the prior written consent of Seashine or the Providers, your modification of the Content, use of the Content on any other website or networked computer environment, or use of the Content for any purpose other than personal, non-commercial use, violates the rights of the owners of Seashine and/or the Provider copyrights, trademarks or service marks and other proprietary rights, and is prohibited. As a condition to your use of the Website, you warrant to Seashine that you will not use the Website for any purpose that is unlawful or prohibited by these Terms, including without limitation the posting or transmitting any threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material. If you violate any of these Terms, your permission to use the Website immediately terminates without the necessity of any notice. Seashine retains the right to deny access to anyone at its discretion for any reason, including for violation of these Terms. You may not use on your website any trademarks, service marks, or copyrighted materials appearing on this Website, including but not limited to any logos or characters, without the express written consent of the owner of the mark or copyright. You may not frame or otherwise incorporate into another website any of the Content or other materials on this Website without prior written consent of Seashine.
You are specifically prohibited from any use of the Website, and you agree not to use or permit others to use this Website, for any of the following: (a) take any action that imposes an unreasonable or disproportionately large load on the Website’s infrastructure, including but not limited to “spam” or other such unsolicited mass emailing techniques; (b) disclose to, or share with, the assigned confirmation numbers and/or passwords with any unauthorized third parties or using the assigned confirmation numbers and/or passwords for any unauthorized purpose; (c) attempt to decipher, decompile, disassemble or reverse engineer any of the software or HTML code comprising or in any way making up a part of this Website; (d) upload, post, email, or otherwise transmit any information, Content, or proprietary rights that you do not have a right to transmit under any law or under contractual or fiduciary relationships; (e) violating any applicable local, state, national, or international law, including, but not limited to, any regulations having the force of law; and, (f) using any robot, spider, intelligent agent, other automatic device, or manual process to search, monitor ,or copy the Website pages, or the Content without our prior written permission, provided that generally available third-party web browsers may be used without such permission.
“Confidential Information” shall mean (i) any and all information of any type and in any medium (written, oral, electronic, or otherwise) furnished by Seashine or its representative or the Providers to you, and (ii) any and all analyses, compilations, forecasts, studies, or other documents prepared by Seashine, its representatives or the Providers in connection with your review of, or interest in, a Transaction, excluding in all cases, information which (a) is or becomes publicly available other than as a result of a disclosure by you or your representatives, or (b) is or becomes available to you on a non-confidential basis from a source (other than Seashine or its representatives) which, to the best of your knowledge after reasonable inquiry, is not bound by a confidentiality agreement with Seashine, or otherwise prohibited from disclosing the information.
Agreement Not to Disclose
You and your representatives shall (i) keep the Confidential Information confidential, (ii) not (except as required by applicable law, regulation or legal process), without Seashine’s prior written consent, disclose any Confidential Information in any manner whatsoever, and (iii) not use any Confidential Information other than in connection with a transaction; provided, however, that you may reveal the Confidential Information to your representatives (a) who need to know the Confidential Information for the purpose of evaluating a Transaction, (b) who are informed of the confidential nature of the Confidential Information and (c) who agree in writing to act in accordance with these Terms. You will cause your representatives to observe these Terms and will be responsible for any breach of these Terms by any of your representatives.
The Linked Websites are provided for your convenience and information only and, as such, you access them at your own risk. The content of any Linked Websites is not under Seashine control, and we are not responsible for, and do not endorse such content, whether or not Seashine is affiliated with the owners of such Linked Websites.
You may not establish a hyperlink to this Website or provide any links that state or imply any sponsorship or endorsement of your website by Seashine, or its affiliates or Providers.
Disclaimer of Warranties and Liability
All content on this Website is provided “as is” and without warranties of any kind either expressed or implied. Other than those warranties which, under the U.S. laws applicable to these terms, are implied by law and are incapable of exclusion, restriction, or modification, Seashine disclaims any and all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. Neither Seashine, or its affiliated or related entities, nor the Providers, nor any person involved in the creation, production, and distribution of the Website warrant that the functions contained in this Website will be uninterrupted or error-free, that defects will be corrected, or that the server that makes the content available will be free of viruses or other harmful components. The content that you access on the Website is provided solely for your convenience and information only. Seashine does not warrant or make any representations regarding the results that may be obtained from the use of the Website, or as to the reliability, accuracy or currency of any information content, service and/or merchandise acquired pursuant to your use of the Website.
You expressly agree that use of the Website is at your sole risk. You (and not Seashine) assume the entire cost of all necessary servicing, repair, or correction of your system. You expressly agree that neither Seashine, nor its affiliated or related entities (including its Providers), nor any of their respective employees, or agents, nor any person or entity involved in the creation, production and distribution of the Website, is responsible or liable to any person or entity whatsoever for any loss, damage (whether actual, consequential, punitive, or otherwise), injury, claim, liability, or other cause of any kind or character whatsoever based upon or resulting from the use or attempted use of the Website or any other linked Website. By way of example, and without limiting the generality of the foregoing, Seashine and related persons and entities shall not be responsible or liable for any claim or damage arising from failure of performance, error, omission, interruption, deletion, defect, delay in operation, computer virus, theft, destruction, unauthorized access to or alteration of personal records, or the reliance upon or use of data, information, opinions, or other materials appearing on this Website. You expressly acknowledge and agree that Seashine is not liable or responsible for any defamatory, offensive, or illegal conduct of other subscribers or third parties. Some jurisdictions may not allow the exclusion or limitation of liability for consequential or incidental damages. In such jurisdictions, Seashine’s liability is limited to the greatest extent permitted by law.
You agree to indemnify, defend, and hold harmless Seashine, its representatives and the Providers, its and their officers, directors, employees, affiliates, agents, licensors, and suppliers from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any violation by you of these Terms.
Seashine shall not be liable for any delay or failure in performance due to Force Majeure, which shall mean acts of God, earthquake, labor disputes, changes in law, regulation or government policy, war, fire, flood, insurrection, sabotage, embargo, epidemics, acts or omissions of vendors or suppliers, transportation difficulties, unavailability of interruption or delay in telecommunications or third-party services (including DNS propagation), failure of third-party software or hardware, or inability to obtain raw materials, supplies, or power or equipment needed. We are not responsible for server downtime under any circumstances.
These Terms are for the benefit of Seashine and its Providers, its and their officers, directors, employees, affiliates, agents, licensors, and suppliers. Each of these individuals or entities shall have the right to assert and enforce these Terms directly against you on its or their own behalf.
Unless otherwise specified, the Content contained on the Website is presented solely for your convenience and/or information. The Website is controlled and operated by Seashine from its offices in California. Seashine makes no representation that Content on the Website is appropriate or available for use in other locations. Those who choose to access the Website from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. You may not use or export the materials on the Website in violation of U.S. export laws and regulations. These Terms shall be governed by, construed, and enforced in accordance with the laws of the State of California, as they are applied to agreements entered into and to be performed entirely within such State. Any action you, any third party or Seashine brings to enforce these Terms, or in connection with any matters related to the Website, shall be brought only in either the state or federal courts located in and for Irvine, CA and you expressly consent to the jurisdiction of said courts. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
Any rights not expressly granted herein are reserved by Seashine.