PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. THE TERMS AND CONDITIONS (“AGREEMENT”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND OTOLITH L.L.C., A PENNSYLVANIA LIMITED LIABILITY COMPANY (“COMPANY”). SECTION 12 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 12 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. PLEASE SEE SECTION 12 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT AND THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT. By accessing or using the website located at https://www.otolithsustainableseafood.com/ (“Website”) in any way, downloading, installing or using the Company’s mobile application (“Application”) or any other software supplied by the Company (collectively, with the Application, the “Software”), accessing or using any information, services, features or resources available or enabled via the Website, Software, or Delivery (each, a “Service” and collectively, the “Services”), clicking on a button or taking similar action to signify your affirmative acceptance of this Agreement, or completing the Otolith LLC (DBA Otolith Sustainable Seafood) account registration process, you hereby represent that: (1) you have read, understand, and agree to be bound by this Agreement and any future amendments and additions to this Agreement as published from time to time at https://www.otolithsustainableseafood.com/terms/ or through the Services; (2) you are of legal age in the jurisdiction in which you or the business your represent reside(s) to form a binding contract with Company; and (3) you have the authority to enter into the Agreement personally and, if applicable, on behalf of any company, organization or other legal entity you have named as the user during the Otolith LLC account registration process and to bind that company, organization or entity to the Agreement. The terms “you,” “user” and “users” refer to all individuals and other persons who access or use the Website, Software, and/or Services, including, without limitation, any companies, organizations or other legal entities that register accounts or otherwise access or use the Services through their respective employees, agents or representatives. Except as otherwise provided herein, if you do not agree to be bound by the Agreement, you may not access or use the Website, the Services, or the Software. Subject to Section 12(h) of this Agreement, the Company reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Website, Software or Services at any time, effective upon posting of an updated version of this Agreement on the Website or Software. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes. The Company uses employees and a network of independent third-party contractors who provide delivery services to our users and other food service providers. Each independent contractor has the right to refuse to provide such delivery services and operate independently of the Company. Users and food service providers also operate independently of the Company. The Company will not assess the suitability, legality or ability of any User, delivery contractor or food service provider. The Company is not responsible for the Users’, independent contractors, food service providers’ food preparation or safety and does not verify their compliance with applicable laws or regulations. The Company has no responsibility or liability for acts by any third party food service provider or independent contractor, or User other than as stated herein. 

1. User Representations, Warranties and Covenants 

By using the Website and/or Services, you expressly represent and warrant that you are legally entitled to enter this Agreement. Your participation in using the Website and/or Services is for your sole, personal or internal business use. When using the Website and/or Services, you agree to comply with all applicable laws from your or your company’s country, state and city in which you are present while using the Website and/or Services. You may only access the Website and/or  Services using authorized means. When applicable, it is your responsibility to check to ensure you receive deliveries undamaged and stored at temperatures 34F or below. The Company is not liable if you accept and receive deliveries stored below 34F. The Company reserves the right to terminate your use of the Website and/or Services should you be using the Website or Services with contempt or abuse toward the Company. 

By using the Website and/or Services, you agree that: 

1. (a) You will only use the Services for lawful purposes; you will not use the Services for sending or storing any unlawful material or for deceptive or fraudulent purposes. 

2. (b) You will not use the Services to cause nuisance, annoyance or inconvenience. 

3. (c) You will not use the Services, or any content accessible through the Services, for any unapproved commercial purpose, including but not limited to contacting, advertising to, soliciting or selling to, any other User, food service provider, or independent contractor, unless the Company has given you permission to do so in writing. 

4. (d) You will not copy or distribute the Software or any content displayed through the Website and/or Services without prior written permission from the Company. 

5. (e) You will not create or compile, directly or indirectly, any collection, compilation, or other directory from any content displayed through the Services except for your personal noncommercial use. 

6. (f) The information you provide to us when you register an account or otherwise communicate with us is accurate, you will promptly notify us of any changes to such information, and you will provide us with whatever proof of identity we may reasonably request. 

7. (g) You are aware that when requesting Services by SMS text messages, standard messaging charges will apply. 

8. (h) You will keep secure and confidential your account password or any identification credentials we provide you which allows access to the Services. 

9. (i) You will not use the Website or Software in any way that could damage, disable, overburden or impair any Company server, or the networks connected to any Company server. 

10. (j) You will not attempt to gain unauthorized access to any part of the Website and/or to any service, account, resource, computer system and/or network connected to any Company server. 11. (k) You will not deep-link to the Website or access the Website manually or with any robot, spider, web crawler, extraction software, automated process and/or device to scrape, copy or monitor any portion of the Website or any content on the Website, unless the Company has given you permission to do so in writing. 

12. (l) You will not copy any content displayed through the Website or Services, including but not limited the Companies species available for sale and/or the wholesale prices as listed for republication in any format or media. 

13. (m) You will not conduct any systematic retrieval of data or other content from the Website, Software or Services. 

14. (n) You will not try to harm other Users or the Company, the Website, Software or Services in any way whatsoever. 

15. (o) You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that you uncover in your use of the Website, Software or Services. 

16. (p) You will not abuse our promotional or credit code system by redeeming multiple coupons at once. 

2. User Account

You are the sole authorized User of any account you create through the Services. You are solely and fully responsible for all activities that occur under your password or account. You agree that you shall monitor your account to prevent use by minors, and you will accept full responsibility for any unauthorized use of your password or your account by minors. You may not authorize others to use your User status, and you may not assign or otherwise transfer your User account to any other person or entity. Should you suspect that any unauthorized party may be using your password or account, you will notify the Company immediately. If you provide any information that is untrue, inaccurate, not current, or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, the Company has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an account or use the Services if you have been previously removed by the Company, or if you have been previously banned from use of the Services. 

3. User Content 

  1. (a) User Content. The Company may provide you with interactive opportunities through the Services, including, by way of example, the ability to post User ratings and reviews (collectively, “User Content”). You represent and warrant that you are the owner of, or otherwise have the right to provide, all User Content that you submit, post and/or otherwise transmit (“Make Available”) through the Services. You hereby grant the Company a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicenseable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use the User Content in connection with the Company’s business and in all forms now known or hereafter invented (“Uses”), without notification to and/or approval by you. You further grant the Company a license to use your username and/or other User profile information, including without limitation your ratings history, to attribute User Content to you in connection with such Uses, without notification or approval by you. 
  2. (b) Feedback. You agree that any submission of any ideas, suggestions, and/or proposals to the Company through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that the Company has no obligations (including without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant to Company a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use such Feedback. 

4. Intellectual Property Ownership 

The Company alone (and its licensors, where applicable) shall own all rights, title and interest, including all related intellectual property rights, in and to the Website, the Company, the Software and the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Website, the Company or the Services, or any intellectual property rights owned by the Company. The Company name, the Company logo, and the product names associated with the Website, the Compamy and Services are trademarks of the Company or third parties, and no right or license is granted to use them. You agree that you will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Products or the Services. 

 

5. Payment Terms

  1. 1. (a) Prices. You understand that: (a) the prices for items displayed through the Services may differ from the prices offered or published by You and/or food service providers for the same items and/or from prices available at other third-party websites and that such prices may not be the lowest prices at which the items are sold; (b) the Company has no obligation to itemize its costs, profits or margins when publishing such prices; and (c) the Company reserves the right to change such prices at any time, at its discretion. You are liable for all applicable resale transaction taxes of item(s) delivered within the Services provided under this Agreement (other than taxes based on the Company’s income). Payment will be processed by the Company, using the preferred payment method designated in your account. 
  2. 2. (b) No Refunds. Charges paid by you for completed and delivered orders are final and non-refundable. The Company has no obligation to provide refunds or credits, but may grant them, in each case in Company’s sole discretion. 
  3. 3. (c) Promotional Offers. The Company, at its sole discretion, may make promotional offers with different features and different rates to any of our Users. These promotional offers, unless made to you, shall have no bearing whatsoever on your offer or contract. We encourage you to check back at our Website periodically if you are interested in learning more about how we charge for the Services and items sold. 
  4. 4. (d) Fees for Services. The Company may change the fees for our Services as we deem necessary or appropriate for our business. 
  5. 5. (e) Net Terms Program. The Company’s Net Terms Program Terms and Conditions are available at https://www.otolithsustainableseafood.com/net-terms/(“Program”). Under the Program, the Company offers its registered Users in good standing the opportunity to receive Otolith Coupons   to be used when placing order(s) through the Website by using a unique coupon ID link (“Personal Link”). Otolith coupons (as defined in the Program) will permit orders to be submitted without payment due upon ordering and will specify the interim number of days before payment for orders is due. You agree we may change the terms and conditions of the Program or terminate the Program at any time. 
  6. 6. (f) Otolith Sustainable Seafood Subscriptions. Otolith Free Delivery is a subscription that provides free deliveries (no delivery fee) on orders with a minimum subtotal as stated when you sign up (excluding tips) for (“Free Deliveries”) placed through the Website for a monthly or yearly fee. Free Deliveries are subject to delivery driver and geographic availability. You may provide an optional gratuity. Depending on the conditions as stated when you sign up, service fees may apply. You will be charged your first monthly subscription fee on the date you purchase your subscription. BY DEFAULT (AND WITH PRIOR NOTICE TO THE EXTENT REQUIRED BY APPLICABLE LAW), YOUR OTOLITH FREE DELIVERY SUBSCRIPTION WILL AUTOMATICALLY RENEW, AND THE THEN-CURRENT SUBSCRIPTION FEE WILL BE AUTOMATICALLY CHARGED TO YOU AT THE TIME OF RENEWAL. If you do not want your subscription to automatically renew, you can change this default you can cancel your Otolith subscription at any time on the dashboard for otolithsustainableseafood.com. You must cancel at least 1 day before the next-scheduled subscription renewal date to avoid being charged for the next subscription period (e.g., if renewal date is January 10, you must cancel by 11:59:59 pm PT on January 9). If you participated in a free or other promotional subscription period for Otolith Free Delivery, you may cancel within the first 48 hours of your paid Otolith Free Delivery subscription and receive a full refund of your Otolith Free Delivery subscription fee (as applicable). For all other retail Users, if you cancel your Otolith Free Delivery subscription, you will not receive a refund, but you can continue to enjoy the Free Deliveries through the end of your then-current billing period. From time to time, Otolith offers some customers trial or other promotional subscriptions to Otolith Free Delivery. Such trial or promotional subscriptions are subject to these Terms except as otherwise stated in the promotional offer. Only one trial or promotional subscription is available per household. Otolith will bill you the applicable fee after your free trial period has expired. If you cancel Otolith Free Delivery before the trial period has expired, Otolith will not charge you. Otolith may change the monthly or annual fee charged for Otolith Free Delivery at any time, but any such fee change will not apply to current Otolith Free Delivery subscribers until such time as your current subscription expires and your subscription is renewed for another term. We may change the terms or conditions applicable to Otolith Free Delivery from time to time. Any new or renewed Otolith Free Delivery subscriptions will be subject to the terms and conditions active at that time and displayed when you sign up for Otolith Free Delivery. Otolith may also make such changes with respect to current Otolith Free Delivery subscriptions. In that case, Otolith will provide you with notice via email of the changes and when those changes will take effect. If you disagree with the changes to your current Otolith Free Delivery subscription terms and conditions, you may cancel your Otolith Free Delivery subscription without receiving a refund of your subscription fee. Your Otolith Free Delivery subscription cannot be transferred or assigned. Otolith reserves the right to accept, refuse, or cancel your Otolith Free Delivery subscription at any time in its sole discretion. If Otolith cancels your Otolith Free Delivery subscription, you will receive a refund of your subscription fee on a pro rata basis calculated from the end of the month during which your subscription was cancelled.

6. Emaillist

  1. 1.Otolith will automatically subscribe all Users to Otolith’s emaillist. By using the Website, Services or Placing Orders via text or email, Users agree to receive emails and SMS text messages from Otolith LLC. Standard SMS text messaging charges will apply. 

7. Third-Party Interactions 

1. (a) Third-Party Websites, Applications and Advertisements. The Services may contain links to third-party websites (“Third Party Websites”) and applications (“Third-Party Applications”) and advertisements (“Third-Party Advertisements”) (collectively, “Third-Party Websites & Advertisements”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Advertisement, the Company will not warn you that you have left the Company’s Website or Services and will not warn you that you are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites & Advertisements are not under the control of the Company. The Company is not responsible for any Third-Party Websites, Third-Party Applications or any Third-Party Advertisements. The Company provides these Third-Party Websites & Advertisements only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Websites & Advertisements, or their products or services. You use all links in Third-Party Websites & Advertisements at your own risk. You should review applicable terms and policies, including privacy and data gathering practices of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party. 

2. (b) App Stores. You acknowledge and agree that the availability of the Application is dependent on the third party from which you received the Application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge that this Agreement is between you and the Company and not with the App Store. The Company, not the App Store, is solely responsible for the Software and the Services, including the Application and the Services, the content thereof, maintenance, support services and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Application or the Services. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Application. You acknowledge that the App Store (and its subsidiaries) are intended third-party beneficiaries of the Agreement and have the right to enforce them. 

 

8. Indemnification

You agree to indemnify and hold harmless the Company and its officers, directors, employees, agents and affiliates (each, an “Indemnified Party”), from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from (a) your User Content; (b) your misuse of the Website, Software or Services; (c) your violation of this Agreement; (d) your violation of any applicable laws, rules or regulations through or related to the use of the Website, Software or Services; or (e) your failure to inspect your order upon receipt before accepting the condition, quality and storage of your order at the time and date of its delivery.  In the event of any claim, allegation, suit or proceeding alleging any matter potentially covered by the agreements in this section, you agree to pay for the defense of the Indemnified Party, including reasonable costs and attorneys’ fees incurred by the Indemnified Party. The Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with the Company in asserting any available defenses. This provision does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party’s negligence, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website, Software or Services. You agree that the provisions in this section will survive any termination of your account, this Agreement, or your access to the Website, Software and/or Services. 

9. Disclaimer of Warranties 

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT OF LAW, YOUR USE OF THE WEBSITE AND/OR SERVICES IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE WEBSITE, COMPANY OPERATIONS AND SERVICES AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. THE WEBSITE, COMPANY OPERATIONS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH THE WEBSITE, AVAILABILITY OF COMPANY SERVICES, OR THE DELIVERY SERVICES, SOFTWARE, TEXT, GRAPHICS OR LINKS. THE COMPANY DOES NOT WARRANT THAT THE WEBSITE, COMPANY OR SERVICES WILL OPERATE ERROR-FREE OR THAT THE WEBSITE, COMPANY OR SERVICES ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE WEBSITE, SOFTWARE OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THE COMPANY SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.

 

10. Internet Delays 

The Company’s Website, Software and Services may be subject to limitations, delays, and other problems inherent in the use of the roads and highways, third-party shippers, Internet and electronic communications. Except as set forth in the Company’s privacy policy or as otherwise required by applicable law, the Company is not responsible for any delays, delivery failures, or other economic damage resulting from such problems. 

11. Limitation of Liability 

  1. (a) Cap on Liability. TO THE FULLEST EXTENT OF LAW THE COMPANY’S AGGREGATE LIABILITY SHALL NOT EXCEED THE GREATER OF (a) AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU TO THE COMPANY IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, AND (b) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF THE COMPANY FOR (a) DEATH OR PERSONAL INJURY CAUSED BY THE COMPANY’S NEGLIGENCE OR WILLFUL MISCONDUCT, OR FOR (b) ANY INJURY CAUSED BY THE COMPANY’S FRAUD OR FRAUDULENT MISREPRESENTATION. 
  2. (b) Disclaimer of Certain Damages. TO THE FULLEST EXTENT OF LAW THE COMPANY SHALL NOT BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE). THE COMPANY SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE WEBSITE, SOFTWARE, OR SERVICES INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE WEBSITE, SOFTWARE, OR SERVICES, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY FOOD SERVICE PROVIDER, DELIVERY PROVIDER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE WEBSITE OR IS REFERRED BY THE SOFTWARE OR SERVICES, EVEN IF THE COMPANY AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER OF PUNITIVE AND EXEMPLARY DAMAGES, AND THE ENTIRE DISCLAIMER OF DAMAGES FOR PERSONAL INJURY OR PROPERTY DAMAGE, OR FOR ANY INJURY CAUSED BY THE COMPANY’S FRAUD OR FRAUDULENT MISREPRESENTATION, SHALL NOT APPLY TO USERS WHO RESIDE IN THE STATE OF NEW JERSEY. 

12. Dispute Resolution PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH THE COMPANY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 12 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”. 

1. (a) Scope of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services as a consumer or reseller, to any advertising or marketing communications regarding the Company or the Services, to any products or services sold or distributed through the Services that you received as a consumer or reseller of our items and/or Services, or to any aspect of your relationship or transactions with the Company as a consumer or reseller of our items or Services will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non representative) basis; and (2) you or the Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement. CASES HAVE BEEN FILED AGAINST THE COMPANY—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES. IF YOU AGREE TO ARBITRATION WITH THE COMPANY, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE COMPANY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. 

2. (b) Arbitration Rules and Forum. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our General Partner at PO BOX 15230, Philadelphia, PA, 19125. Any controversy or claim arising out of or relating to this contract, under its rules and pursuant to the terms of this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial [or other] Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. 

3. (c) Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and the Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and the Company. 

4. (d) Waiver of Jury Trial. YOU AND THE COMPANY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and the Company are instead electing to have claims and disputes resolved by arbitration, except as specified in section 12(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited. 

5. (e) Waiver of Class or Consolidated Actions. YOU AND THE COMPANY AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor the Company is entitled to arbitration of such claim or dispute.

6. (f) NOTWITHSTANDING ANYTHING TO THE CONTARY HEREIN, NOTHING IN THIS AGREEMENT SHALL SUPERSEDE, AMEND, OR MODIFY THE TERMS OF ANY SEPARATE AGREEMENT(S) BETWEEN YOU AND THE COMPANY RELATING TO YOUR NET TERMS PROGRAM,  OTOLITH FREE DELIVERY SUBSCRIPTION, REFUND AND RETURN POLICY OR INDEPENDENT CONTRACTOR AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY INDEPENDENT CONTRACTOR AGREEMENT GOVERNING YOUR SERVICES AS A NON EMPLOYEE. 

7. (g) Survival. This Arbitration Agreement will survive any termination of your relationship with the Company. 

8. (h) Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if the Company makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the Company. 

13. Exclusive Venue To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and the Company agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Philadelphia County. 

14. Termination At its sole discretion, the Company may modify or discontinue the User Agreement, Software or Service, or may modify, suspend or terminate your access to the Website,  Software or the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Website, Company or the Service, the Company reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Website, Software or the Services are terminated, this Agreement will remain enforceable against you. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement. 

15. Procedure for Making Claims of Copyright Infringement. It is the Company’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to the Company by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Website or the Services in a way that constitutes copyright infringement, please provide our An Agent of Otolith LLC with the following information: 

  1. 1)(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; 
  2. 2) (b) a description of the copyrighted work that you claim has been infringed; 
  3. 3)(c) a description of the location on the Website or in the Services of the material that you claim is infringing; 
  4. 4) (d) your address, telephone number and e-mail address; 
  5. 5)(e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and 
  6. 6)(f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. 

Contact information for the Company’s Copyright Agent for notice of claims of copyright infringement is as follows: General Partner, OTOLITH L.L.C., PO BOX 15230, Philadelphia, PA 19125. 

16. General

1. (a) No Joint Venture or Partnership. No joint venture, partnership, employment, or agency relationship exists between you, the Company or any third party provider as a result of this Agreement or use of the Website, Software or Services. 

2. (b) Choice of Law. This Agreement is governed by the laws of the State of Pennsylvania consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction. 

3. (c) Severability. Except as otherwise provided herein, if any provision of this Agreement is found to be invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.

4. (d) Consumer Complaints. You may report complaints to the Pennsylvania Bureau of Consumer Protection by contacting them in writing at Bureau of Consumer Protection, 15th Floor, Strawberry Square, Harrisburg, PA 17120, or by telephone at (717) 787-9707. 

5. (e) Notice. Where the Company requires that you provide an e-mail address, you are responsible for providing the Company with your most current e-mail address. In the event that the last e-mail address you provided to the Company is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, the Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to the Company through the following web form: www.otolithsustainableseafood.com/help/. Such notice shall be deemed given on the next business day after such e-mail is actually received by the Company. 

6. (f) Electronic Communications. For contractual purposes, you (1) consent to receive communications from the Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that the Company provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. This subparagraph does not affect your statutory rights. 

7. (g) Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. 

17. Contact Information.

Otolith LLC welcomes your questions or comments regarding the Terms: 

Mailing Address: Otolith L.L.C. PO BOX 15230, Philadelphia, PA 19125 

Help Form: https://www.otolithsustainableseafood.com/help/ 

Telephone Number: +1 (215) 426-4266

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