The Oceanpacific.COM web site (the “Site”) is a service provided by ICONIX ECOM, LLC (referred to as, “Oceanpacific.com”). These Terms of Service, along with any other terms and conditions that may appear on the Site from time-to-time (collectively, “Conditions”), set forth the terms and conditions under which you may use and access the Site. These Conditions apply only to this Site. To the extent that you make a purchase from the Site, additional terms (including for returns) may be found here and/or on the packing slip included with the product shipment, which you should review carefully. IF YOU DO NOT AGREE TO THESE CONDITIONS (WITHOUT MODIFICATION), YOU ARE NOT AUTHORIZED TO ACCESS OR OTHERWISE USE THE SITE.
Please note that the Site is not directed toward children under the age of thirteen (13) years. Oceanpacific.com does not knowingly collect any personal data from children under the age of thirteen (13) years. The children's products that Oceanpacific.com offers for sale on the Site are intended for purchase by adults only. No one under the age of thirteen (13) years should provide any personal data on the Site.
Oceanpacific.com reserves the right at any time to modify, alter or update these Conditions. Your use of the Site following any changes means that you agree to follow and be bound by the terms as changed. Any change to these Conditions shall be effective as to any visitor who has visited the Site before the change was made. It is the obligation of users visiting the Site before the change to learn of changes to the Conditions since their last visit. The most current version of the Conditions can be reviewed by clicking on the "Terms of Service" hypertext link located at the bottom of our web pages. Please read these terms carefully, as they contain important information about limitations of liability and indemnification. If you object to any of these Conditions or any subsequent changes, you may not use the Site.
USE OF SITE AND CONTENT.
1.1 USE OF SITE.
You may access and use the Site solely for your personal use in accordance with these Conditions. You agree not to access or use the Site in any manner that is prohibited by these Conditions or is otherwise unlawful. We reserve the right, in our sole discretion, to terminate or suspend your access to, and/or use of, the Site, or any portion thereof, at any time, with or without notice and for any reason (or no reason), and you agree that (a) if your authorization to access the Site is terminated, you will not thereafter access, or attempt to access, the Site, directly or indirectly, and (b) if your authorization to access the Site is suspended, you will not thereafter access, or attempt to access, the Site, directly or indirectly, until your suspension is removed and we give you express notice thereof.
1.2 USE OF CONTENT.
You may make a single copy and/or print a single copy of any information displayed or transmitted on the Site (including, but not limited to, logotypes, trademarks, service marks, directories, guides, news articles, opinions, reviews, text, photographs, images, illustrations, audio clips, video, html, source and object code, software, data, and the like, collectively "Content") for your personal use only.
1.3 UNAUTHORIZED ACTIVITIES.
Except as expressly permitted in Section 1.1 and 1.2 above, you agree not to, without first obtaining our express written permission, (a) distribute (including via e-mail), or otherwise make available, copies of any Content to anyone, (b) republish the Content on the Internet or any intranet or extranet site or incorporate the Content in any database, file, compilation, or archive, (c) reproduce, adapt, distribute, perform or display any Content, in each instance except to the extent required for the limited purpose of viewing material on the Site, (d) alter or remove any trademark, copyright or any other notice contained in any Content, (e) archive or retain any Content in any form, (f) use Content for any commercial purposes, (g) use any of our trademarks as meta tags on other web sites, (h) use the Site in any manner that is illegal or impairs the operation of the Site or its availability or usage by others, and/or (i) display any part of the Site in frames (or any Content via in-line links). You agree not to decompile, reverse engineer or disassemble any software or other products or processes accessible through the Site, and not to insert any code or product or manipulate the Content in any way that affects the user’s experience. You further agree not to use any data mining, web crawlers, robots, cancelbots, spiders, Trojan horses, or any data gathering or extraction method in connection with your use of the Site.
1.4 PRODUCT INFORMATION AND COLORS.
We have made every effort to display as accurately as possible the colors of our products that appear on the Site. However, as the actual colors you see will depend on your monitor, we cannot guarantee that your monitor's display of any color will be accurate.
Certain areas of the Site may require registration. If you register or provide information to us in any manner, you agree to provide only true, accurate, current and complete information. If we issue a username and/or password to you, you agree to protect such information by, among other things, keeping your password and other information relating to your account confidential. If, notwithstanding the foregoing obligation, you allow another party to use your account, you will be responsible for all use of the Site by the party using your account.
LINKING AND THIRD PARTY DEALINGS.
4.1 LINKS TO EXTERNAL SITES.
We may provide hyperlinks to other web sites and Internet resources operated by parties other than Oceanpacific.com. We have no control over such sites and resources or their privacy policies. Such hyperlinks are provided for your reference only. The inclusion of hyperlinks to such web sites does not imply any sponsorship, affiliation or endorsement of the material on such web sites or with their operators.
4.2 THIRD-PARTY DEALINGS.
Some portions of the Site may direct you to a web site of a third party. Your dealings or communications through the Site with any party other than us are solely between you and that third party. Please review carefully that third party’s policies and practices and make sure you are comfortable with those policies and practices before you engage in any transaction. Any complaints, concerns or questions you may have relating to materials provided by third parties should be forwarded directly to the third party.
As between you and Oceanpacific.com, all Content, as well as the selection and arrangement of the Content, is owned by (or licensed to) Oceanpacific.com, its affiliates or suppliers and is protected by copyright, trade dress, trademark, unfair competition, and/or other laws and may not be used, copied or imitated in whole or in part except as expressly provided in these Conditions. Except as otherwise expressly provided in these Conditions, all rights in and to the Content are expressly reserved by Oceanpacific.com.
YOUR INDEMNIFICATION OF OCEANPACIFIC.COM.
YOU AGREE TO INDEMNIFY AND HOLD HARMLESS OCEANPACIFIC.COM AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, INFORMATION PROVIDERS, SUPPLIERS AND LICENSEES (COLLECTIVELY, "INDEMNIFIED PARTIES") FROM AND AGAINST ANY AND ALL LIABILITY AND COSTS, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY’S FEES, INCURRED BY THE INDEMNIFIED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF (A) YOUR ACCESS AND/OR USE OF THE SITE, (B) ANY BREACH OF ANY OF THESE CONDITIONS BY YOU OR ANY USER OF YOUR ACCOUNT, AND/OR (C) ANY ALLEGATION WHICH, IF TRUE, WOULD CONSTITUTE A BREACH OF ANY OF THESE CONDITIONS BY YOU OR ANY USER OF YOUR ACCOUNT. THE FOREGOING INDEMNIFICATION PROVISION SHALL NOT APPLY TO OCEANPACIFIC.COM’S OWN NEGLIGENCE OR INTENTIONAL CONDUCT.
THE SITE IS PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR SOLE DISCRETION AND RISK. WE AND OUR SUPPLIERS HEREBY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, REASONABLE CARE, COMPATIBILITY, SECURITY, QUALITY, TIMELINESS, AVAILABILITY, COMPLETENESS, RELIABILITY, ACCURACY, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT WE AND/OR ANY OF OUR SUPPLIERS KNOW, HAVE REASON TO KNOW, HAVE BEEN ADVISED, OR ARE OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), IN EACH INSTANCE IN RESPECT OF THE SITE (INCLUDING, WITHOUT LIMITATION, ALL CONTENT). FURTHERMORE, WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF TITLE AND/OR NON-INFRINGEMENT IN RESPECT OF THE SITE (INCLUDING, WITHOUT LIMITATION, ALL CONTENT). WE MAKE NO REPRESENTATION THAT MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE ARE APPROPRIATE OR AVAILABLE FOR USE OUTSIDE THE UNITED STATES AND ACCESS TO THEM FROM TERRITORIES WHERE THEIR CONTENTS ARE ILLEGAL IS PROHIBITED. SOME JURISDICTIONS DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED OR MODIFIED, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU.
LIMITATION OF OCEANPACIFIC.COM'S LIABILITY.
8.1 LIMITATION ON LIABILITY FOR DAMAGES.
EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT WILL OCEANPACIFIC.COM, ITS PARENTS, LICENSORS, LICENSEES, AFFILIATES, AND/OR SUPPLIERS BE LIABLE FOR (A) ANY DAMAGES OF ANY NATURE WHATSOEVER RESULTING FROM, OR RELATED TO YOUR MISUSE OF THE SITE, YOUR INABILITY TO USE THE SITE (INCLUDING, WITHOUT LIMITATION, ANY CONTENT), YOUR LOSS OF ANY CONTENT OBTAINED THROUGH THE SITE, (B) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE SITE OR THIRD PARTY SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE SITE (INCLUDING, WITHOUT LIMITATION, ANY CONTENT), IN EACH OF (A) AND (B) ABOVE WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE AND EVEN IF OCEANPACIFIC.COM, ITS PARENTS, AFFILIATES, AND/OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 CAP ON OCEANPACIFIC.COM'S AGGREGATE LIABILITY.
IN ALL EVENTS, OCEANPACIFIC.COM’S AGGREGATE LIABILITY FOR CLAIMS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE CONDITIONS AND/OR YOUR USE OF THE SITE (INCLUDING, WITHOUT LIMITATION, ANY CONTENT) WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE SHALL BE LIMITED TO THE GREATER OF (A) $50.00, OR (B) THE AMOUNT YOU PAID TO ACCESS THE SITE DURING THE THREE (3) MONTH PERIOD PRIOR TO THE ACCRUAL OF THE CLAIM, IF ANY.
8.3 WHEN THESE EXCLUSIONS MAY NOT APPLY.
SOME JURISDICTIONS, INCLUDING NEW JERSEY, DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATION ON LIABILITY MAY NOT APPLY TO YOU. IN SUCH CASES, OCEANPACIFIC.COM'S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
If you believe that any content or postings on this Site violate your intellectual property or other rights, please send to Oceanpacific.com at email@example.com, a comprehensive detailed notice setting forth all applicable facts and assertions, including (1) your address, telephone number and e-mail address, (2) a statement by you that you have a good faith belief that the disputed use is not authorized by you or owner of the item or rights, your or the owner's agent, or law, (3) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the owner of the item or rights in question or are authorized to act on the owner's behalf, and (4) your electronic or physical signature or the electronic or physical signature of the owner of the item or right in question.
MODIFICATIONS TO THE SITE.
For further clarity, (a) we may modify, suspend, discontinue and/or restrict the use of all or any portion of the Site including the availability of any data or other information contained on the Site at any time for any reason and without notice or liability, and (b) we reserve the right, with or without notice to you, to change any of the services offered on the Site including, but not limited to, hours of operation, menu structures, access procedures, software commands, documentation, suppliers and/or other services.
CHOICE OF LAW, FORUM SELECTION, PROCEEDINGS TO BE RESOLVED ON AN INDIVIDUAL BASIS, AND LIMITATION ON STATUTE OF LIMITATIONS.
11.1. CHOICE OF LAW.
THESE CONDITIONS ARE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, USA, EXCEPT FOR ITS CONFLICT OF LAWS PROVISIONS.
11.2. FORUM SELECTION.
IN THE EVENT YOU DESIRE TO INITIATE ANY SUIT AGAINST OCEANPACIFIC.COM ARISING OUT OF OR RELATING TO THE SITE (INCLUDING, WITHOUT LIMITATION, THE CONTENT OF THE SITE) AND/OR THESE CONDITIONS, YOU AGREE TO BRING SUCH SUIT IN THE FEDERAL COURTS SITTING IN NEW YORK, NEW YORK, USA UNLESS NO FEDERAL SUBJECT MATTER JURISDICTION EXISTS, IN WHICH CASE YOU AGREE TO BRING SUCH SUIT IN THE STATE COURTS SITTING IN NEW YORK, USA. YOU FURTHER AGREE THAT WE MAY INITIATE A SUIT AGAINST YOU ARISING OUT OF OR RELATING TO THE SITE (INCLUDING, WITHOUT LIMITATION, THE CONTENT OF THE SITE) AND/OR THESE CONDITIONS IN SUCH COURTS AND YOU HEREBY WAIVE ALL RIGHTS YOU MAY HAVE OR WHICH MAY HEREAFTER ARISE TO CONTEST JURISDICTION OR VENUE IN SUCH COURTS.
11.3. PROCEEDINGS TO BE RESOLVED ON AN INDIVIDUAL BASIS.
ANY DISPUTES WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.
11.4. LIMITATION ON STATUTE OF LIMITATIONS.
YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY DESIRE TO BRING ARISING OUT OF OR RELATED TO THESE CONDITIONS AND/OR THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ARISES OR SUCH CAUSE OF ACTION IS DISCOVERED AFTER REASONABLE DILIGENCE; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
MATERIALS SUBMITTED TO THE SITE.
The Site may allow you to contribute or otherwise make available comments, feedback, information, content, text, files, graphics, postings, and other materials and information for access, use, viewing and commentary by other users to the Site (“User Content”). By posting User Content, you represent that you have the full legal right to provide the User Content and that use of the User Content by the Site and all other persons and entities will not (a) infringe any intellectual property rights of any person or entity or any rights of publicity, personality, or privacy of any person or entity, including as a result of your failure to obtain consent to post personally identifying or otherwise private information about a person; (b) violate any law, statute, ordinance, regulation, or agreement; or (c) constitute disclosure of any confidential information owned by any third party. Upon your submission of User Content or other material or information to Oceanpacific.com, you grant Oceanpacific.com a worldwide, perpetual, irrevocable, transferable, license to access, use, distribute, reproduce, display, modify, create derivative works based upon, and sublicense, the User Content, all without any compensation to you whatsoever.
The Site is hosted on servers located in the United States and is intended to be viewed by residents of the United States. These Conditions including, without limitation, and any other terms and conditions that may appear on the Site from time-to-time contain the full understanding with respect to your use and access of the Site and supersede all prior agreements, terms, conditions and understandings, both written and oral, with respect to such use and access of the Site. If any portion of these Conditions is held to be invalid or unenforceable, the invalid or unenforceable portion shall be modified in accordance with the applicable law as nearly as possible to reflect the original intention of the applicable provision, and the remainder of these Conditions shall remain in full force and effect. A printed version of these Conditions of Use and of any notices given to you in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Conditions to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The failure of Oceanpacific.com to insist upon or enforce strict performance by you of any provision of these Conditions shall not be construed as a waiver of any provision or right. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these Conditions. We may provide notice to you relating to the Site and/or these Conditions by sending an e-mail to your last known e-mail address, and any such notice shall be deemed given and received on the day it is sent. You may not use the Site or export the Content in violation of U.S. export laws and regulations. If you access the Site from a location outside the United States, you are responsible for compliance with all local laws.