.Last Updated: March 18th 2022 

Thank you for using the Oceanside Seafood website and associated content (hereinafter “Website”), which is owned, operated, or licensed by Oceanside Seafood. Oceanside Seafood provides you with a limited license to use the Website subject to the terms and conditions contained within this Terms of Use Agreement (hereinafter “Agreement”). 

THIS TERMS OF USE AGREEMENT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT AFFECTS YOUR LEGAL RIGHTS. YOU HAVE A DUTY TO READ THE ARBITRATION PROVISION AND CLASS ACTION WAIVER CONTINED WITHIN. IF YOU DO NOT AGREE TO THE TERMS OF THIS ARBITRATION AND CLASS ACTION WAIVER, YOU MUST IMMEDIATELY DISCONTINUE YOUR USE OF THE WEBSITE. 

By using the Website, you manifest your assent and agree to be bound by this Agreement. If you do not agree to the terms and conditions contained within this Agreement, you must discontinue your use of the Website immediately. Oceanside Seafood reserves the right to suspend, replace, modify, amend, or terminate this Agreement at any time and within its sole and absolute discretion. In the event Oceanside Seafood replaces, modifies, or amends this Agreement, the Last Updated date, located at the top of this Agreement, will change. Your continued use of the Website after a change in the Last Updated date above will constitute your manifestation of assent to and agreement with any replacement, modification, or amendment herein.

1. User Warranties

By using the Website, you warrant that you are age eighteen (18) or above the age of majority within your legal jurisdiction, are of sound mind, and have the capacity to agree to and uphold the terms and conditions contained within this Agreement. If you use the Website on behalf of a business entity or other third party, you warrant that you express actual authority to act as an agent of that business entity and third party and, as a component of that agency, have the right and ability to agree to the terms of this Agreement on behalf of that third party or business entity.

1. Limited License

 You acknowledge and agree that the Website is the property of or is licensed by Oceanside Seafood and is protected under United States and international law, including, but not limited to, intellectual property laws and other personal and proprietary rights. You acknowledge and agree that your use of the Website is limited by the license granted under the terms of this Agreement, and you expressly agree that you will not use the Website in any manner not expressly authorized under the terms of this Agreement. Oceanside Seafood reserves all of rights not expressly granted through this Agreement.

Oceanside Seafood provides you with a limited, non-exclusive, non-sublicensable, non-assignable, revocable, and royalty free license to use the Website for its customary and intended purposes. You are expressly prohibited from reproducing, preparing derivative works of, distributing copies of, publicly performing, and publicly displaying the Website.

1. Acceptable Use Policy

 You are expressly prohibited from using the Website to violate any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international, or to violate the rights of a third party, including, but not limited to, intellectual property rights, privacy rights, rights of publicity, or other personal or proprietary rights. Additionally, you are expressly prohibited from scraping, crawling, aggregating, hacking, performing denial of service attacks on, reverse engineering, or circumventing technological protection measures of the Website.

1. Ordering and Payment

Payment for all orders placed through the website must be made at the time of ordering. You understand and agree that the prices quoted on the Website are an invitation to deal and that no contract will be formed between you and Oceanside Seafood until Oceanside Seafood accepts your invitation to deal by performance, specifically, by completing your order and shipping the ordered goods. You agree that you will pay all shipping fees and all applicable taxes or charges imposed by any governmental entity anywhere in the world in connection with your use of the Website or purchase of goods through the Website. All costs and fees are quoted and payable in United States Dollars and you acknowledge and agree that Oceanside Seafood is not responsible for any foreign transaction fees or other fees charged to you by your financial institution or by Oceanside Seafood’s payment processor. You agree that you will not initiate any chargebacks to Oceanside Seafood unless otherwise authorized by Oceanside Seafood in writing. You understand and agree that you will be responsible and required to pay for any costs associated with any chargebacks that you have initiated against Oceanside Seafood.

By providing a credit card or other payment method accepted by Oceanside Seafood, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your order (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You will be required to resolve any payment method problems before we proceed with your Order. If a payment is not successfully settled and you do not edit your payment method information or cancel your order, you remain responsible for any uncollected amounts and authorize us to continue billing the payment method, as it may be updated.

1. Pricing and Product Availability

While Oceanside Seafood strives to carry or have regular access to sufficient inventory, it is possible high volume or rare products are out of stock at the time of your order. If this is the case, Oceanside Seafood will contact you in a reasonable time frame to advise you of the issue. You understand and agree that the availability of a product displayed through the Website does not guarantee that the product will be in stock or that your order can be immediately fulfilled by Oceanside Seafood.

Oceanside Seafood reserves the right to impose limits on the quantity of a given product or products, in their sole discretion. Oceanside Seafood further reserves the right to discontinue and/or substitute products listed for sale depending on availability and costs. Due to the perishable nature of seafood products and changes in the market conditions outside of our control, we may need to alter our product offerings and/or pricing from time to time.

1. Shipping

Oceanside Seafood may provide shipping via USPS, UPS, FEDEX Ground, or other providers. All prices are Free Carrier (F.C.A.) and risk of loss and title passes to you upon delivery to the carrier.

Any damaged or incorrect shipments must be reported within 48 hours of receipt. For damaged shipments, the shipment must be refused at the time of delivery and the original box and packaging must be kept until the carrier/shipper who delivered claims them unnecessary for any claim purpose. If not reported within 48 hours of receipt, Oceanside Seafood will consider all claims of damage, defect, or other error waived. All shipment fees incurring from refused products shall be paid by you and will not be chargeable to Oceanside Seafood. 

Shipping charges are based on the monetary amount of your order and the shipping destination. All shipments will be made consistent with Oceanside Seafood’s then in force shipping and handling policy, which is hereinafter incorporated by reference and may be changed at any time and within Oceanside Seafood’s sole and absolute discretion. 

1. Deliveries

We use high quality insulated boxes to ensure thar your seafood will arrive in a frozen condition. We use dry-ice to properly maintain a sub-zero environment inside of the package, the amount of dry-ice is determined by our team member upon the day of shipping to ensure enough coolant will be used. Packages have an affixed label with dating guidelines to help determine the safety of each package in the event that the delivery carrier delivers later than intended. 

You are responsible for the safety and integrity of the products delivered to your home. It is best to have an adult at the home during the delivery time frame to properly store your purchases, especially in warm climates. All products should be refrigerated or frozen immediately upon delivery and we recommend that you follow the U.S. Department of Agriculture’s (“USDA”) instructions on food safety including refrigeration, safe handling, etc. Failure to follow safe food handling practices and temperature recommendations may increase the risk of contracting foodborne illnesses. Pregnant women, young children, the elderly and individuals with compromised immune systems should follow the U.S. Food and Drug Administration’s recommendations on food consumption for at-risk groups. 

Below are links to some helpful information relevant to this section. We encourage all of our customers to follow safe food recommendations.

• https://www.fda.gov/food/resources-you-food/consumers

• https://www.fsis.usda.gov/wps/portal/fsis/topics/food-safety-education/get-answers/food-safety-fact-sheets/safe-food-handling/refrigeration-and-food-safety/ct_index

• https://www.foodsafety.gov/

1. No Resale

Oceanside Seafood does not package products for resale. Customers are not permitted to resell or otherwise use the Products for commercial purposes.

1. User Accounts

Oceanside Seafood may provide you with the ability to create a user account, which may provide you with the ability to view special pricing, view order status, and see recently viewed and purchased items through the Website (hereinafter “User Account”). 

You acknowledge and agree that you control access to your User Account. Your User Account may only be used by you or by third parties with your express written consent. Oceanside Seafood will not be held responsible or liable for any unauthorized access to your User Account, and you are under a continuing duty to promptly provide Oceanside Seafood with notice of any unauthorized or unusual access to your User Account. You are advised to keep the username and password associated with your User Account secure and secret. By creating a User Account and providing your personal information to Oceanside Seafood, you acknowledge and agree that Oceanside Seafood may use your personal information to contact you.

Oceanside Seafood reserves the right to suspend or terminate your User Account at any time and in its sole and absolute discretion, including, but not limited to, for a violation of any term or condition of this Agreement. 

When using a User Account, you warrant and agree that, on behalf of yourself and your past, present, and future agents, servants, employees, representatives, and attorneys, you will hold the terms of all Oceanside Seafood pricing and inventory confidential and will refrain from distributing Oceanside Seafood’s pricing or list of inventory to any third parties except: (a) as may be required pursuant to a court order or other lawful process; or (b) as may be required by applicable law (including tax laws and regulations). This confidentiality provision will not extend to any pricing or inventory information that is now or may in the future become generally available to the public through no improper action or inaction by Oceanside Seafood or its affiliates, agents, consultants, or employees. You and Oceanside Seafood acknowledge and agree that a violation of this confidentiality obligation would cause Oceanside Seafood irreparable harm not compensable by monetary damages. Accordingly, in the event of an actual or threatened violation of your confidentiality obligations under this section, Oceanside Seafood will be entitled to temporary, preliminary, and permanent injunctive relief, without the necessity of filing a bond. Additionally, in the event of your actual violation of these confidentiality obligations, Oceanside Seafood will be entitled to recover against you: (a) actual monetary damages; and (b) in all events where liability is established, the reasonable attorneys’ fees and costs incurred in connection with establishing liability.

1. Third Party Links

You acknowledge and agree that the Website may contain links to third party websites or content that Oceanside Seafood does not own or control. You are advised to review the terms and conditions of any third-party websites or content linked to through the Website, and you agree that Oceanside Seafood will not be responsible for websites not under the ownership or control of Oceanside Seafood.

1. Term and Termination

 The term of this Agreement will begin upon your first accessing of the Website and will continue until the earlier of the following: (i) Oceanside Seafood terminates your access to the Website; or (ii) you cease using the Website and terminate your User Account. Oceanside Seafood reserves the right to terminate the Website or your access to the Website in its sole and absolute discretion and without prior notice.

1. Trademarks

You acknowledge and agree that any and all trademarks, trade names, design marks, or logos displayed on the Website by Oceanside Seafood, including but not limited to OCEANSIDE SEAFOOD, are common law or registered trademarks owned by or licensed to Oceanside Seafood. You are expressly prohibited from using the trademarks of Oceanside Seafood to cause confusion in, to cause mistake in, or to deceive consumers, or from falsely designating the origin of, the source of, or the sponsorship of your goods or services. You are further prohibited from using the trademarks of Oceanside Seafood in domain names, in keyword advertisements, to trigger keyword advertisements, or in meta tags. All other trademarks, trade names, design marks, or logos are the property of their respective owners.

1. ADA Accessibility Policy

We are happy to accommodate users with special needs or requirements. Oceanside Seafood is committed to providing its employees and the public, including persons with disabilities, with access to the Website and its related information and services. In designing the website, Oceanside Seafood makes reasonable efforts to comply with the WCAG 2.0 Level AA web accessibility standards. The Website has been designed to reach the widest audience possible, but, if you have difficulty viewing the Website, using the Website, or performing any transaction through the Website, you are encouraged to contact Oceanside Seafood at 517-579-2924

1. Disclaimers and Limitation of Liability

YOU ARE SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISKS RELATED TO, THE PROPER AND SAFE WASHING, HANDLING, PREPARATION, STORAGE, COOKING, USE AND CONSUMPTION OF THE PRODUCTS YOU PURCHASE FROM OCEANSIDE SEAFOOD. YOU ARE ALSO SOLELY RESPONSIBLE FOR BEING INFORMED OF ANY FOOD ALLERGIES YOU MAY HAVE AND VERIFYING THE PRODUCTS AND THEIR CONTENTS BEFORE HANDLING, PREPARING, USING OR CONSUMING SUCH PRODUCTS. YOU ALSO UNDERSTAND, ACKNOWLEDGE AND AGREE THAT WE STORE AND PACKAGE PRODUCTS CONTAINING POTENTIAL ALLERGENS.  OCEANSIDE SEAFOOD DOES NOT GUARANTEE THAT CROSS-CONTAMINATION WILL NOT OCCUR BETWEEN PRODUCTS. 

OCEANSIDE SEAFOOD DOES NOT GUARANTEE THE ACCURACY OF INFORMATIONAL MATERIALS PROVIDED ON OUR WEBSITE. A REFERENCE TO A PRODUCT ON THE SITES DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER.

YOU ACKNOWLEDGE AND AGREE THAT THE WEBSITE AND PRODUCTS ARE PROVIDED ON AN “AS-IS” BASIS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, AND NON-INFRINGEMENT. WHEREVER PERMITTED BY LAW, YOU ACKNOWLEDGE THAT OCEANSIDE SEAFOOD WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CLAIMS, DAMAGES, JUDGMENTS, CHARGES, OR FEES ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, COSTS, AND ATTORNEYS’ FEES, DAMAGES ARISING OUT OF ERRORS OR OMISSIONS, AND DAMAGES ARISING OUT OF THE UNAVAILABILITY OF THE WEBSITE OR DOWNTIME. YOU ACKNOWLEDGE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK AND THAT OCEANSIDE SEAFOOD’S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO USE THE WEBSITE OR $1000, WHICHEVER IS LESS.

OCEANSIDE SEAFOOD EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY DAMAGE, INJURY, HARM, COST, EXPENSE, OR LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF PRODUCTS PURCHASED THROUGH THE WEBSITE. EXCEPT FOR THE WARRANTIES SPECIFICALLY STATED IN THIS AGREEMENT, PRODUCTS PURCHASED THROUGH THE WEBSITE ARE PROVIDED WITHOUT EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PUPOSE, TITLE, ACCURACY, NON-INFRINGEMENT, OR QUALITY. SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, YOU ARE ADVISED TO SEEK LEGAL ADVICE TO DETERMINE IF THIS EXCLUSION APPLIES TO YOU.

OCEANSIDE SEAFOOD WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY, WHETHER IN WARRANTY, CONTRACT, STRICT LIABILITY, TORT, OR NEGLIGENCE, FOR ANY DAMAGES, CLAIMS, INJURIES, JUDGMENTS, COSTS, OR LIABILITIES OF ANY KIND ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF PRODUCTS PURCHASED THROUGH THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, DAMAGE TO PROPERTY, LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNATIVE DAMAGES, OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE. YOU ACKNOWLEDGE THAT YOUR USE OF PRODUCTS PURCHASED THROUGH THE WEBSITE IS AT YOUR SOLE RISK AND THAT SWINGSETMALL.COM’S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID FOR THE PRODUCTS OR $1000, WHICHEVER IS LESS. 

Oceanside Seafood reserves the right to change any and all Content and to modify, suspend or stop providing access to the Website (or any features or functionality of the Website) and the Products at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier, vendor or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by us.

1. Indemnification

You agree to indemnify, defend, and hold harmless Oceanside Seafood, its officers, shareholders, directors, employees, subsidiaries, affiliates, and representatives from any and all losses, including, but not limited to, costs and attorneys’ fees, arising out of or related to (i) your use of the Website, (ii) your purchase of products through the Website; (iii) your use or misuse of products obtained through the Website; (iv) your violation of any term or condition of this Agreement; (v) your violation of the rights of third parties, including, but not limited to, intellectual property rights or other personal or proprietary rights; and (vi) your violation of any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international. Your obligation to defend Oceanside Seafood will not provide you with the ability to control Oceanside Seafood’s defense, and Oceanside Seafood reserves the right to control its defense, including its choice of counsel and whether to litigate or settle a claim subject to indemnification. 

1. Choice of Law and Stipulation to Jurisdiction

You and Oceanside Seafood agree that any dispute, claim or controversy arising out of or in relation to your use of the Website, this Agreement, or the applicability, breach, termination, validity, enforcement, or interpretation thereof, will be settled by binding individual arbitration. If there is a dispute about whether this arbitration clause can be enforced or applies to the dispute between you and Oceanside Seafood, you and Oceanside Seafood agree that the arbitrator will decide that issue. Notwithstanding the foregoing, you and Oceanside Seafood each agree that any claim related to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights will not be subject to this arbitration clause or arbitration. However, all claims related to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or intellectual property rights will be interpreted under Michigan law and will be heard exclusively in the state and federal courts located in Grand Rapids, Michigan.

You and Oceanside Seafood agree that the Federal Arbitration Act will govern the interpretation and enforcement of this arbitration provision. The arbitration will be administered under American Arbitration Associations’ most recent Commercial Arbitration Rules then in effect except where as modified herein. The arbitration will be conducted in Grand Rapids, Michigan and will be decided by a single arbitrator randomly selected from a list of neutral arbitrators maintained by the American Arbitration Association. Judgment on any award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator will be provided with the right to award costs and attorneys’ fees to the prevailing Party. This arbitration will be held in Grand Rapids, Michigan and both parties agree that they will be required to be present in Grand Rapids, Michigan for arbitration under the terms of this Agreement and hereby submit to exclusive personal jurisdiction in Grand Rapids, Michigan. The arbitrator will apply the laws of the State of Michigan and the federal laws of the United States in deciding any controversy or claim pursuant to this arbitration clause.

You and Oceanside Seafood acknowledge and agree that each are waiving the right to a trial by jury as to all arbitrable disputes.

You and Oceanside Seafood acknowledge and agree that, to the fullest extent permitted under the law, each are waiving the right to participate as a plaintiff or class member in any class action lawsuit, class arbitration, or private attorney general action. If this class action waiver is held unenforceable with respect to the dispute between the Parties, the Parties agree that the entirety of the arbitration clause will be deemed void with respect to such dispute and the dispute must proceed in court.

1. Force Majeure 

Oceanside Seafood will not be responsible for any delay or failure in performance of the Website or its associated products arising out of any cause beyond Oceanside Seafood’s control, such as acts of God, war, riots, fire, terrorist attacks, pandemics, power outages, severe weather, other accidents, or natural events affecting the seafood product availability. 

1. Survivability

 The representations, warranties, duties, and covenants made by you under this Agreement will survive the termination of this Agreement, your User Account, or the Website, including, but not limited to, your duty to indemnify and defend Oceanside Seafood.

1. Severability

 In the event any term or condition of this Agreement is deemed invalid or unenforceable, the remaining terms and conditions of this Agreement will remain in full force and effect.

1. Interpretation

This Agreement will be deemed to have been drafted by both parties, and the terms and conditions of this Agreement will not be interpreted against its drafter.

1. Assignment 

You are expressly prohibited from assigning your rights and duties under this Agreement. Oceanside Seafood reserves the right to assign its rights and duties under this Agreement, including in a sale of Oceanside Seafood or its Website.

1. Waiver, Privacy Policy, and Integration 

No term or condition of this Agreement or breach of this Agreement will be deemed to have been waived or consented to unless said waiver is writing and signed by the party to be charged. This Agreement is the entire agreement between the parties and supersedes all previous agreements or representations between the parties. Oceanside Seafood incorporates by reference its Privacy Policy as if fully stated herein.

SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS

Oceanside Seafood INC. (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy  (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.

1. User Opt-In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive auto-dialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply. Message frequency varies.

2. User Opt-Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt-out of the Program. You may receive an additional mobile message confirming your decision to opt-out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that Oceanside Seafood Inc. and its service providers will have no liability for failing to honor such requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.

3. Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing, promotion, payment, delivery, and sale of frozen seafood. Messages may include checkout reminders.

4. Cost and Frequency: Message and data rates may apply. You agree to receive messages periodically at Our discretion. Daily, weekly, and monthly message frequency will vary. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.

5. Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at Sales@Oceansideseafood.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt-outs must be submitted in accordance with the procedures set forth above.

6. MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.

7. Our Disclaimer of Warranty: The Program is offered on an “as-is” basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. Carriers are not liable for delayed or undelivered mobile messages.

8. Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with a text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text-messaging instructions.

9. Age Restriction: You may not use or engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18), and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.

10. Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:

• Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
• Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
• Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
• Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
• Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
• Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.

11. Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge Inc. d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Howell, MI before one arbitrator.

The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which Oceanside Seafood Inc principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration.

THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY VIA ARBITRATION AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. Further, unless both parties agree otherwise in a signed writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.

12. Florida Law: We endeavor to comply with the Florida Telemarketing Act and the Florida Do Not Call Act as applicable to Florida residents. For purposes of compliance, you agree that we may assume that you are a Florida resident if, at the time of opt-in to Program, (1) your shipping address, as provided is located in Florida or (2) the area code for the phone number used to opt-into the Program is a Florida area code. You agree that the requirements of the Florida Telemarketing Act and the Florida Do Not Call Act do not apply to you, and you shall not assert that you are a Florida resident, if you do not meet either of these criteria or, in the alternative, do not affirmatively advise us in writing that you are a Florida resident by sending written notice to us. Insofar as you are a Florida resident, you agree that mobile messages sent by Us in direct response to mobile messages or requests from You (including but are not limited to response to Keywords, opt-in, help or stop requests, and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable.

13. Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.