Terms of Service
Last Updated: December 17, 2017
These Terms do not alter in any way the terms or conditions of any other agreement you may have with us in respect of any products, services or otherwise. If you are using the Sites on behalf of any person or entity, you represent and warrant that you are authorized to accept these Terms on such person or entity’s behalf and that such person or entity agrees to be responsible to us if you or such person or entity violates these Terms.
Exotic Reef Imports reserves the right to change or modify these Terms at any time and in our sole discretion. If we make changes to these Terms, we will provide notice of such changes, such as by sending an email notification, providing notice through the Sites or updating the "Last Updated" date at the beginning of these Terms. By continuing to access or use the Sites or order, receive or use Products, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference. We encourage you to review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Sites or order, receive or use the Products. If you do not agree to the revised Terms, you may not access or use the Sites or order, receive or use the Products.
The Sites are not targeted toward or intended for use by anyone under the age of 18. By using the Sites, you represent and warrant that you (a) are 18 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the Sites, or engaged in any activity that could result in suspension or removal from the Sites, (d) do not have more than one Exotic Reef Imports account, and (e) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party. We continually test new features, functionalities, services, user interfaces and products that we are considering incorporating into our Sites or Products. We reserve the right to include or exclude you from these tests without notice.
3. Registration, Account and Communication Preferences
To access and use certain areas or features of the Sites, you will need to register for a Exotic Reef Imports account. By creating an account, you agree to
- (a) provide accurate, current and complete account information,
- (b) maintain and promptly update, as necessary, your account information,
- (c) maintain the security of your account credentials,
- (d) be responsible for the acts or omissions of any third party who has authority to access or use the Sites on your behalf, and
- (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Sites or your account.
By creating a Exotic Reef Imports account, you also consent to receive electronic communications from Exotic Reef Imports (e.g., via email, fax, or by posting notices to the Sites). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
4. Terms of Sale
4.1. Payment and Billing Information
By providing a credit card or other payment method that we accept, 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 subscription or other purchase (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 must resolve any problem we encounter in order to proceed with your Order. In the event you want to change or update payment information associated with your Exotic Reef Imports account, you can do so at any time by logging into your account and editing your payment information.
You acknowledge that the amount billed may vary due to promotional offers, changes in applicable taxes or other charges, and you authorize us (or our third party payment processor) to charge your payment method for the corresponding amount. You also acknowledge that your credit card may be charged prior to your Products actually being shipped.
4.2. Pricing and Availability
All prices are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice. We will also not be able to notify you of changes in any applicable taxes. The shipment Products, as applicable, to you after our delivery of such notice will confirm your acceptance of such changes.
All of our Products are subject to availability, and we reserve the right to impose quantity limits on any Order, to reject all or part of an Order, to discontinue offering certain Products without prior notice. We strive to provide you with high-quality Products, and given the perishable nature of live Products and market conditions beyond our control, we may be required to make substitutions from time to time. You will be offered the option to authorize us to substitute one size up or down from your size of choice at the time of Product selection. If you opt to not authorize us to substitute size, this may affect the availability of the Product item you have chosen.
We will collect applicable sales tax on Products shipped to the states for which we determine we have a duty to collect sales tax. If an item is subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.
4.4. Shipping and Handling
For shipments sent via prepaid freight, you agree to pay any applicable shipping and handling charges shown at the time you make a purchase. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time at our sole discretion and without prior notice. By completing your order you acknowledge that you have read and agree to the most current shipping and handling fees. Generally, shipping is handled by a third party courier and any delivery commitment made by Exotic Reef Imports is based solely on the couriers’ commitment. Actual delivery dates and times may vary due to circumstances beyond the control of Exotic Reef Imports and we assume no liability for said variances. All Products purchased from us are made pursuant to a shipment contract. This means that title to and the risk of loss of such Products passes to you upon our delivery of the Product to the third party courier.
4.5. Deliveries and Pick Ups
You are responsible for inspecting all Products you receive from us for any damage or other issues upon delivery or upon pick up. In addition, you are solely responsible for being present to accept your shipment on the first delivery attempt by the courier if door-to-door shipping is used. For all counter-to-counter shipments (courier or airline) you are solely responsible to pick up your shipment within one (1) hour of it being available.
If you, or your representative, are not preent when your Product delivery arrives, all guarantees on the Products are immediately voided. Advance planning by you should be made for PROMPT receiving and unpacking as well as proper acclimation of your Products. You are responsible for unpacking and acclimating your live Product shipment within a maximum of one (1) hour after it is delivered to your requested destination.
In the case of inclement weather or other events beyond our control that interfere with the courier’s ability to deliver your Order, we will attempt to reschedule your Order as soon as reasonably possible. We re not responsible, under ANY circumstance, for any delay and/or damage suffered to your shipment in transit.
5. License to Access and Use Our Sites and Content
Unless otherwise indicated in writing by us, the Sites and all content and other materials contained therein, including, without limitation, the Exotic Reef Imports logo and all designs, text, graphics, pictures, information, data, software, sound files, User Content (as defined in Section 11), other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of Exotic Reef Imports or our licensors or users, as applicable, and are protected by U.S. and international copyright laws.
You are hereby granted a limited, nonexclusive, nontransferable, nonsublicensable license to access and use the Sites and Content. However, such license is subject to these Terms and does not include any right to
- (a) sell, resell or use commercially the Sites or Content,
- (b) distribute, publicly perform or publicly display any Content,
- (c) modify or otherwise make any derivative uses of the Sites or Content, or any portion thereof,
- (d) use any data mining, robots or similar data gathering or extraction methods,
- (e) download (other than the page caching) any portion of the Sites or Content, except as Exotic Reef Imports permits, and
- (f) use the Sites or Content other than for their intended purposes.
Any use of the Sites or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of Exotic Reef Imports or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.
Not with standing anything to the contrary in these Terms, the Sites and Content may include software components provided by Exotic Reef Imports or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
6. Repeat Infringer Policy; Copyright Complaints
In accordance with the Digital Millennium Copyright Act and other applicable laws, we have adopted a policy of limiting access to the Sites by, or terminating the accounts of, users, in appropriate circumstances and in our sole discretion, who infringe the intellectual property rights of others. If you believe that anything on the Sites infringes any copyright that you own or control, you may file a notification of such infringement.
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
"Exotic Reef Imports," the Exotic Reef Imports logo and any other Exotic Reef Imports Product or service names, logos or slogans that may appear on the Sites or Products are trademarks of Exotic Reef Imports and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other "hidden text" utilizing “Exotic Reef Imports” or any other name, trademark or Product or service Exotic Reef Imports of Exotic Reef Imports without our prior written permission. In addition, the look and feel of the Sites and Products, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of Exotic Reef Imports and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, Product names and company names or logos mentioned on the Sites or Products are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any Products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Exotic Reef Imports.
You are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Sites for noncommercial purposes, provided that such link does not portray Exotic Reef Imports or any of our Products in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a Exotic Reef Imports logo or other proprietary graphic of Exotic Reef Imports to link to the Sites without our Exotic Reef Imports’ written permission. Further, you may not use, frame or utilize framing techniques to enclose any Exotic Reef Imports trademark, logo or other proprietary information, including the images found on the Sites or Products, the content of any text or the layout or design of any page, or form contained on a page, on the Sites without our Exotic Reef Imports written consent.
Exotic Reef Imports makes no claim or representation regarding the quality, content, nature or reliability of third party websites accessible by hyperlink from the Sites or of websites linking to the Sites. Such sites are not under our control and we provide these links to you only as a convenience. The inclusion of any link does not imply our affiliation, endorsement or adoption of any site or any information contained therein. When you leave the Sites, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Sites.
9. Third Party Content
We may display content, advertisements and promotions from third parties through the Sites or in shipments with Products (collectively, "Third Party Content"). We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties.
10. User Conduct
You agree that you will not violate any law, contract, intellectual property or other third party right or commit a tort, and that you are solely responsible for your conduct, while accessing or using the Sites. You agree that you will abide by these Terms and will not:
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Use or attempt to use another user’s account without authorization from such user and Exotic Reef Imports;
- Use the Sites in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Sites or that could damage, disable, overburden or impair the functioning of the Sites in any manner;
- Reverse engineer any aspect of the Sites or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any Content, area or code of the Sites;
- Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Sites that you are not authorized to access;
- Develop any third party applications that interact with User Content or the Sites without our prior written consent;
- Use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Sites, extract data or otherwise interfere with or modify the rendering of Site pages or functionality;
- Bypass or ignore instructions contained in the robots.txt file that controls all automated access to the Sites; or
- Use the Sites for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
11. User Content
The Sites may include interactive features and areas that allow users to create, post, share or store content, including, but not limited to, recipes, reviews, photos, videos, music, sound, text, graphics, code, items or other materials (collectively, "User Content"). In the event you decide to share your User Content with others through the Sites or third party platforms, you understand that this User Content will be viewable by others in accordance with the privacy settings you establish. You agree that you are solely responsible for your User Content and for your use of any interactive features and areas of the Sites.
By using the interactive features and areas of the Sites, you further agree not to create, post, share or store any of the following:
- User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
- User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
- User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- User Content that contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
- User Content that impersonates, or misrepresents your affiliation with, any person or entity;
- User Content that references or depicts Exotic Reef Imports or our Products but fails to disclose a material connection to us, if you have one (for example, if you are an Exotic Reef Imports employee or paid blogger);
- User Content that contains any unsolicited promotions, political campaigning, advertising or solicitations;
- User Content that contains any private or personal information of a third party without such third party’s consent;
- User Content that references alcohol irresponsibly, such as references to overconsumption or use by minors;
- User Content that contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
- User Content that, in our sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying the Sites or Products, or that may expose Exotic Reef Imports or others to any harm or liability of any type.
Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Sites at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Sites at your sole cost and expense.
12. Rights in User Content
We do not claim any ownership interest in your User Content. However, by uploading, posting or submitting User Content to the Sites or to our pages or feeds on third party social media platforms (e.g., Exotic Reef Imports’ Facebook page, Instagram page or Twitter feed), you hereby grant Exotic Reef Imports a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes.
By uploading, posting or submitting User Content to Exotic Reef Imports through the Sites or through our pages or feeds on third party social media platforms, you represent and warrant that
- (a) such User Content is nonconfidential,
- (b) you own and control all of the rights to the User Content or you otherwise have all necessary rights to post such User Content,
- (c) you authorize Exotic Reef Imports to use such User Content for the purposes described in these Terms,
- (d) the User Content is accurate and not misleading or harmful in any manner, and
- (e) the User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, regulation or third party right.
Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about Exotic Reef Imports, the Sites or the Products (collectively, "Feedback"). Feedback is nonconfidential and shall become the sole property of Exotic Reef Imports. Exotic Reef Imports shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Exotic Reef Imports, and our respective past, present and future employees, officers, directors, contractors, consultants, equityholders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the "Exotic Reef Imports Parties"), from and against all actual or alleged Exotic Reef Imports Party or third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses and costs of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, "Claims"), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to
- (a) any use or misuse of the Sites, Content or Products by you or any third party you authorize to access or use such Sites, Content or Products,
- (b) any User Content you create, post, share or store on or through the Sites or our pages or feeds on third party social media platforms,
- (c) any Feedback you provide,
- (d) your violation of these Terms, and
- (e) your violation of the rights of another.
You agree to promptly notify Exotic Reef Imports of any third party Claims, cooperate with the Exotic Reef Imports Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). You further agree that the Exotic Reef Imports Parties shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Exotic Reef Imports.
YOU ARE SOLELY RESPONSIBLE FOR READING AND COMPLYING WITH THE TERMS AND CONDITIONS PUBLISHED ON THE SITE. THIS DOCUMENT DETAILS THE PRECISE TERMS AND CONDITIONS THAT GOVERN OUR POLICIES AND LIMIT THE GUARANTEES WE PROVIDE.
WE ATTEMPT TO DISPLAY THE PRODUCTS AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE SITES, INCLUDING PRICING, SHIPPING, AND OTHER INFORMATION, AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION. IN THE EVENT OF AN ERROR ON OUR SITES, IN AN ORDER CONFIRMATION, IN PROCESSING OR DELIVERING AN ORDER OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT SUCH ERROR AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND. YOU FURTHER AGREE THAT THE PRODUCTS AND OTHER MATERIALS YOU RECEIVE IN YOUR ORDER MAY VARY FROM THE PRODUCTS AND MATERIALS DISPLAYED ON THE SITES DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS OR SUPPLY ISSUES, AND THE AVAILABILITY AND VARIABILITY OF PRODUCTS. THE SITES MAY CONTAIN INFORMATION ABOUT PRODUCTS THAT ARE NOT AVAILABLE IN EVERY LOCATION. 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.
EXCEPT AS MAY BE PROVIDED IN A WARRANTY BY THE MANUFACTURER OF A PRODUCT, ALL DRY GOODS PRODUCTS AND THE SITES AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXOTIC REEF IMPORTS OR IMPLIED. EXOTIC REEF IMPORTS DISCLAIMS ALL OTHER WARRANTIES, EXOTIC REEF IMPORTS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SITES, CONTENT AND PRODUCTS, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE SITES OR PRODUCTS WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS.
BY ORDERING THE PRODUCTS, YOU AGREE THAT ALL LIVE PRODUCT SHIPMENTS WILL BE RECEIVED ON THE FIRST DELIVERY ATTEMPT BY THE COURIER, AND WILL BE OPENED AND ACCLIMATED WITHIN ONE (1) HOUR OF BEING DELIVERED TO YOU BY THE COURIER. YOU AGREE TO HOLD EXOTIC REEF IMPORTS FREE OF ANY LIABILITY RESULTING FROM DELAYS IN ACCEPTING AND ACCLIMATING SHIPMENTS WITHIN ONE (1) HOURS OF DELIVERY. THIS PROVISION ALSO APPLIES TO ANY APPLICABLE "PEACE-OF-MINDTM" INSURANCE PURCHASED.
BY ORDERING THE PRODUCTS, YOU AGREE THAT ALL LIVE PRODUCT SHIPMENTS SHIPPED COUNTER-TO-COUNTER WILL BE PICKED UP WITHIN ONE (1) HOUR OF BEING MADE AVAILABLE. YOU AGREE TO HOLD EXOTIC REEF IMPORTS FREE OF ANY LIABILITY RESULTING FROM DELAYS IN PICKING UP COUNTER-TO-COUNTER SHIPMENTS.
BY ORDERING LIVE ANIMALS FROM EXOTIC REEF IMPORTS YOU UNDERSTAND THAT INVENTORY LEVELS AND ANIMAL HEALTH CAN AFFECT HOW YOUR ORDER IS FILLED. EXOTIC REEF IMPORTS WILL NOT SHIP ANY ANIMAL THAT DOES NOT MEET IT’S MINIMAL STANDARDS FOR SHIPPING INCLUDING HEALTH, PHYSICAL DAMAGE, AND VITALITY. ADDITIONALLY, IT MAY OCCUR THAT ANIMALS ORDERED ARE NO LONGER IN INVENTORY AT THE TIME OF FULFILLMENT. ACCORDINGLY, THERE IS NO GUARANTEE WHATSOEVER THAT EVERY ANIMAL ORDERED FROM EXOTIC REEF IMPORTS WILL ACTUALLY BE SHIPPED TO YOU. EXOTIC REEF IMPORTS RESERVES THE RIGHT TO SHIP PARTIALLY FULFILLED ORDERS.
We reserve the right to change any and all Content and to modify, suspend or stop providing access to the Sites (or any features or functionality of the Sites) 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.
All purchases made from Exotic Reef Imports are conducted strictly and specifically per the terms contained in this Terms of Service and Use contract. Accordingly, any and all rights to challenge and /or charge back any credit card charges made on a credit card used to purchase from Exotic Reef Imports are hereby unconditionally waived by the cardholder. Any issues related to duplicate charges, pricing errors, product quality, quantity issues and livestock DOA’s will be handled by Exotic Reef Imports and specifically limited according to the terms described in this Terms of Service and Use contract.
17. Limitation of Liability; Release
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE EXOTIC REEF IMPORTS PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE SITES OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, THIRD PARTY CONTENT AND LINKS TO THIRD PARTY SITES), OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM ANY EXOTIC REEF IMPORTS PARTY, OR FROM EVENTS BEYOND THE EXOTIC REEF IMPORTS PARTIES’ REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE EXOTIC REEF IMPORTS PARTIES’ RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE EXOTIC REEF IMPORTS PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE ORDER, RECEIPT OR USE OF PRODUCTS PURCHASED FROM EXOTIC REEF IMPORTS EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE THE EXOTIC REEF IMPORTS PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE THE EXOTIC REEF IMPORTS PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH EXOTIC REEF IMPORTSPARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
18. Modifications to the Sites and Products
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Sites (or any features or parts thereof) or the provision of the Products at any time.
19. Dispute Resolution; Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH EXOTIC REEF IMPORTS AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
19.1. Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, "Disputes") arising out of or related to a violation of Section 10 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Exotic Reef Imports agree (a) to waive your and Exotic Reef Imports’ respective rights to have any and all Disputes arising from or related to these Terms, or the Sites, Content or Products, resolved in a court, and (b) to waive your and Exotic Reef Imports’ respective rights to a jury trial. Instead, you and Exotic Reef Imports agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
19.2. No Class Arbitrations, Class Actions or Representative Actions
You and Exotic Reef Imports agree that any Dispute arising out of or related to these Terms or the Sites, Content or Products is personal to you and Exotic Reef Imports and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Exotic Reef Imports agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Exotic Reef Imports agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
19.3. Federal Arbitration Act
You and Exotic Reef Imports agree that these Terms affect interstate commerce and that the enforceability of this Section 19 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the "FAA"), to the maximum extent permitted by applicable law.
19.4. Notice; Informal Dispute Resolution
You and Exotic Reef Imports agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Exotic Reef Imports shall be sent by certified mail or courier to Exotic Reef Imports at 1924A E. Maple Avenue, El Segundo, CA 90245. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Exotic Reef Imports account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 3 and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Exotic Reef Imports cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Exotic Reef Imports may, as appropriate and in accordance with this Section 19, commence an arbitration proceeding or, to the extent specifically provided for in Section 19.1, file a claim in court.
EXCEPT FOR DISPUTES ARISING OUT OF OR RELATED TO A VIOLATION OF SECTION 10 OR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND EXOTIC REEF IMPORTS AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR EXOTIC REEF IMPORTS WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND EXOTIC REEF IMPORTS WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and Exotic Reef Imports agree that
- (a) any arbitration will occur in the State of California, City of Los Angeles,
- (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services ("JAMS"), which are hereby incorporated by reference, and
- (c) that the state or federal courts of the State of California and the United States, respectively, sitting in the State of California, City of Los Angeles have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
19.6. Authority of Arbitrator
As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
19.7. Rules of JAMS
The rules of JAMS and additional information about JAMS are available on the JAMS website (www.jamsadr.com). By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of JAMS, or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
If any term, clause or provision of this Section 18 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 18 will remain valid and enforceable. Further, the waivers set forth in Section 18.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
20. Governing Law and Venue
These Terms, your access to and use of the Sites and your order, receipt and use of the Products shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of California and the United States, respectively, sitting in the State of California, City of Los Angeles.
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Sites and to order, receive and use the Products, at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
The following sections will survive the expiration or termination of these Terms and the termination of your Exotic Reef Imports account: all defined terms and Sections 1, 3, 4, 5 (first paragraph only), 6, 7, 8 (second paragraph only), 9 through 24.
These Terms constitute the entire agreement between you and Exotic Reef Imports relating to your access to and use of the Sites and your order, receipt and use of Products. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Exotic Reef Imports. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Exotic Reef Imports’ failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.