Last Updated: 10/5/2020
PLEASE READ: THESE TERMS CONTAIN A MANDATORY ARBITRATION AGREEMENT, REQUIRING ANY DISPUTE BETWEEN YOU AND OSEA MALIBU, SUBJECT TO LIMITED EXCEPTIONS, TO BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS AND REQUIRING YOU TO FORGO JURY TRIALS, CLASS OR COLLECTIVE ACTIONS OR PROCEEDINGS, AND ALL OTHER TYPES OF COURT PROCEEDINGS OF ANY KIND. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT FOLLOWING THE OPT-OUT PROCEDURES IN SECTION I BELOW, YOU WILL BE BOUND BY THIS ARBITRATION AGREEMENT. BY ENTERING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU UNDERSTAND AND EXPRESSLY AGREE TO THE MANDATORY ARBITRATION AGREEMENT.
I. Binding Arbitration & Class Action Waiver
Mandatory Binding Arbitration
By agreeing to these Terms, you agree that all disputes, claims, or causes of action arising from or related to the Services or these Terms, or the breach, termination, enforcement, interpretation, or validity thereof (collectively, “Disputes”), will be resolved through binding arbitration in accordance with the rules of the American Arbitration Association (“AAA”), and not in a court of law in any jurisdiction, and not in a class, representative, or consolidated action or proceeding, as further set forth below.
You and OSEA Malibu agree that the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Class Action Waiver
You acknowledge and agree that you and OSEA Malibu are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class, representative, or consolidated action or proceeding. Unless both you and OSEA Malibu agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the entirety of the Arbitration Agreement set forth in this Section I shall be deemed null and void in its entirety, and the parties shall be deemed to have not agreed to arbitrate disputes on a class basis.
Notwithstanding the parties’ agreement to resolve all Disputes through arbitration, you and OSEA Malibu each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyright rights, trade secrets, patents or other intellectual property rights.
You can choose to reject this Arbitration Agreement by sending us a written opt-out notice (“Opt-Out Notice”) within 30 days following the date you first agree to these Terms, by email at email@example.com or by mail at 1795 Washington Way, Venice, CA 90291. If mailed, the Opt-Out Notice must be post-marked no later than 30 days following the date you first agree to these Terms. To be effective, the Opt-Out Notice must contain your name, address, and signature. If you opt-out of the Arbitration Agreement, all other parts of the Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may enter with OSEA Malibu.
Rules, Procedures & Governing Law
The arbitration will be administered by AAA under its Consumer Arbitration Rules and any supplementary rules then in effect (the “AAA Rules”), except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling the AAA at (800) 778-7879. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. Notwithstanding any choice of law or other provision in the Terms, you and OSEA Malibu agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement of proceedings pursuant thereto. It is the intent of the parties that the AAA Rules and FAA shall preempt all state laws to the fullest extent permitted by law. If the AAA Rules and FAA are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of California, without regard to its choice or conflict of law provisions.
A party who wishes to start arbitration must submit a written Demand for Arbitration to the AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org. You can contact the AAA for more information on how to commence an arbitration proceeding at www.adr.org or (800) 778-7879.
For claims under $10,000, you may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. If your claim is at or above $10,000, your right to a hearing will be determined by the AAA Rules.
Changes to Arbitration Agreement or Class Action Waiver
Notwithstanding the provisions of this Section I, if OSEA Malibu changes any of the terms of this Section I after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us a written notice of such rejection within 30 days of the of the date such change became effective, as indicated in the “Last Updated” date above. This written notice must be provided either by email at firstname.lastname@example.org or by mail to 1795 Washington Way, Venice, CA 90291. In order to be effective, the notice must include your full name, address, and signature, and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting any change, you are agreeing that you will arbitrate any dispute between you and OSEA Malibu in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).
The entire content included in the Services, including but not limited to text, graphics or code is copyrighted as a collective work under the United States and other copyright laws, and is the property of OSEA Malibu. The collective work includes works that are licensed to OSEA Malibu. Copyright 2003, OSEA Malibu ALL RIGHTS RESERVED. Permission is granted to electronically copy and print hard copy portions of this Site for the sole purpose of placing an order with OSEA Malibu or purchasing OSEA Malibu products. You may display and, subject to any expressly stated restrictions or limitations relating to specific material, download or print portions of the material from the different areas of the Site solely for your own non-commercial use, or to place an order with OSEA Malibu or to purchase OSEA Malibu products. Any other use, including but not limited to the reproduction, distribution, display or transmission of the content of this site is strictly prohibited, unless authorized by OSEA Malibu. You further agree not to change or delete any proprietary notices from materials downloaded from the site.
All trademarks, service marks and trade names of OSEA Malibu used in the Services are trademarks or registered trademarks of OSEA Malibu
IV. Warranty Disclaimer
The Services are provided "as is" and without warranties of any kind, whether express or implied. To the fullest extent permissible pursuant to applicable law, OSEA Malibu disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement. OSEA Malibu does not represent or warrant that the functions contained in the Site will be uninterrupted or error-free, that the defects will be corrected, or that this Site or the server that makes the Site available are free of viruses or other harmful components. OSEA Malibu does not make any warrantees or representations regarding the use of the materials in this Site in terms of their correctness, accuracy, adequacy, usefulness, timeliness, reliability or otherwise. Some states do not permit limitations or exclusions on warranties, so the above limitations may not apply to you.
V. Limitation of Liability
OSEA Malibu shall not be liable for any special or consequential damages that result from the use of, or the inability to use, the materials on this site or the performance of the products, even if OSEA Malibu has been advised of the possibility of such damages. Applicable law may not allow the limitation of exclusion of liability or incidental or consequential damages, so the above limitation or exclusion may not apply to you.
THE LIMITATIONS AND DISCLAIMERS IN THESE TERMS DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, INCLUDING NEW JERSEY LAW.
VI. Typographical Errors
In the event that a OSEA Malibu product is mistakenly listed at an incorrect price, OSEA Malibu reserves the right to refuse or cancel any orders placed for product listed at the incorrect price. OSEA Malibu reserves the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is cancelled, OSEA Malibu shall issue a credit to your credit card account in the amount of the incorrect price.
VII. Term; Termination
These Terms are applicable to you upon your accessing the Site and/or completing the registration or shopping process. These Terms, or any part of them, may be terminated by OSEA Malibu without notice at any time, for any reason. The provisions relating to Copyrights, Trademark, Disclaimer, Limitation of Liability, Indemnification and Miscellaneous, shall survive any termination.
OSEA Malibu may deliver notice to you by means of e-mail, a general notice on the site, or by other reliable method to the address you have provided to OSEA Malibu.
IX. Governing Law & Forum Choice
Your use of the Services shall be governed in all respects by the laws of the State of California, without regard to choice of law provisions, and not by the 1980 U.N. Convention on contracts for the international sale of goods. You agree that jurisdiction over and venue in any legal proceeding directly or indirectly arising out of or relating to the Services (including but not limited to the purchase of OSEA Malibu products) shall be in the state or federal courts located in Los Angeles County, California. Any cause of action or claim you may have with respect to the Services (including but not limited to the purchase of OSEA Malibu products) must be commenced within one (1) year after the claim or cause of action arises.
OSEA Malibu's failure to insist upon or enforce strict performance of any provision of these Terms shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any of these Terms. OSEA Malibu may assign its rights and duties under these Terms to any party at any time without notice to you.
OSEA Malibu reserves the right to refuse or cancel any promotional orders. OSEA Malibu reserves the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is cancelled, OSEA Malibu shall issue a credit to your credit card account in the amount of the charge.
XI. Use of Site
Harassment in any manner or form on the Site, including via e-mail, chat, or by use of obscene or abusive language, is strictly forbidden. Impersonation of others, including an OSEA Malibu or other licensed employee, host, or representative, as well as other members or visitors on the Site is prohibited. You may not upload to, distribute, or otherwise publish through the Site any content which is libelous, defamatory, obscene, threatening, invasive of privacy or publicity rights, abusive, illegal, or otherwise objectionable which may constitute or encourage a criminal offense, violate the rights of any party or which may otherwise give rise to liability or violate any law. You may not upload commercial content on the Site or use the Site to solicit others to join or become members of any other commercial online service or other organization.
XII. Participation Disclaimer
OSEA Malibu does not and cannot review all communications and materials posted to or created by users accessing the Services, and is not in any manner responsible for the content of these communications and materials. You acknowledge that by providing you with the ability to view and distribute user-generated content on the Site, OSEA Malibu is merely acting as a passive conduit for such distribution and is not undertaking any obligation or liability relating to any contents or activities on the Site. However, OSEA Malibu reserves the right to block or remove communications or materials that it determines to be (a) abusive, defamatory, or obscene, (b) fraudulent, deceptive, or misleading, (c) in violation of a copyright, trademark or; other intellectual property right of another or (d) offensive or otherwise unacceptable to OSEA Malibu in its sole discretion.
Except as set forth in Section I, if any provision or portion thereof of these Terms is determined to be unlawful, void, or unenforceable, such provision or portion thereof shall be deemed severed from these Terms and shall not affect the validity and enforceability of any other remaining provisions, which shall remain in full force and effect.
You agree to indemnify, defend, and hold harmless OSEA Malibu, its officers, directors, employees, agents, licensors and suppliers (collectively the "Service Providers") from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of these Terms or any activity related to your access or use of the Services (including negligent or wrongful conduct) by you or any other person accessing or using the Services using your Internet account.
XV. Third-Party Links
In an attempt to provide increased value to our visitors, OSEA Malibu may link to sites operated by third parties. However, even if the third party is affiliated with OSEA Malibu, OSEA Malibu has no control over these linked sites, all of which have separate privacy and data collection practices, independent of OSEA Malibu. These linked sites are only for your convenience and therefore you access them at your own risk. Nonetheless, OSEA Malibu seeks to protect the integrity of its Site and the links placed upon it and therefore requests any feedback on not only its own Site, but for sites it links to as well (including if a specific link does not work).