Last Updated: December 11, 2019
Effective Date: December 11, 2019
What is Personal Information?
Personal information is any information about you as an identifiable individual. The personal information that we process includes:
• Basic information – such as name, age, gender, passport information and publicly available photograph;
• Contact information – such as your home address, zip/postal code, email address and phone number;
• Financial information – such as your credit card details, itemized spending and transaction history;
• Health information where disclosed and relevant to the provision of services;
• Preferences – such as special requests, service issues and other preferences for your stay;
• Technical information – such as information about the device you use to interact with us (including the unique device identifier, hardware model, operating system and version, and mobile network information, in the case of our mobile App); and
• Correspondence – when you contact us, such as to send an enquiry or make a request, any correspondence or application may be kept and added to your personal information.
How do we use your personal information?
We use your personal information for the following purposes:
• to enable you to use our website and any mobile App;
• to help us identify you and any accounts you hold with us;
• to provide superior customer service to you;
• to assist us in making your reservation and providing the services you request at any of our properties;
• to process transactions through our website (including taking payment for purchases you may make through our website) and to assist in any inquiries about your transaction; • for billing purposes in relation to your stay with us;
• to confirm prior transactions and reconcile statements or invoices;
• to contact you in relation to matters that arise from your stay with us;
• to send you newsletters regarding our properties and to advise you of promotions or to
inform you of offers or other information that may be of interest to you (if, where required, you separately provide your consent for us to do so);
• to conduct surveys or focus groups to receive your views of our properties and service delivery (if, where required, you separately provide your consent to this);
• to respond to a specific enquiry from you about our hotels and deal with any other
enquiries, correspondence, concerns or complaints you have raised;
• for you to participate in one of our on-line promotions;
• to analyze customer trends and insights; and
• to operate our business, including for internal purposes such as auditing, data analysis, statistical and research purposes and troubleshooting to help us improve our services.
Occasionally we will combine information from a number of guests to better understand trends and your expectations. When this occurs, all identifiers are removed and the aggregate, anonymized information cannot be linked to any specific individual.
On what basis do we use your personal information?
We use your personal information on the following basis:
• to comply with legal and regulatory obligations, including financial reporting requirements imposed by government regulators and our auditors;
• to enter into agreements with you, and to perform our agreement to provide services to you when you stay with us;
• for legitimate business purposes – using your personal information helps us to operate and improve our business and minimize any disruption to the services that we may offer to you. It also allows us to make our communications with you more relevant and personalized to you, and to make your experience of our services more efficient and effective;
• because you have given your consent – at times we may ask for your consent to allow us to use your personal information for one or more purposes. See the Your Rights section for more information about the rights that you have if we process your information on the basis of your consent; or
• for the establishment, exercise or defense of legal claims or proceedings.
How is personal information collected?
We collect your personal information while monitoring our technology tools and services, including comment cards and email communications sent to and from Oceanic. Otherwise, we gather information when you provide it to us, or interact with us directly, for example: • when you create a profile or sign in to access an existing profile on our website or App;
• when you make a purchase through our website;
• when you make a reservation online, by calling one of our Reservation Offices or by contacting a particular hotel directly; and
• during your stay at a hotel, including information provided during check-in.
We also receive information about you from other sources, such as our business partners and publicly available sources. We combine information that we have about you from various sources, including the information that you have provided to us.
How do we protect personal information?
We use a variety of security measures and technologies to help protect your personal information from unauthorized access, use, disclosure, alteration or destruction, consistent with applicable data protection and privacy laws including “cloud servers” owned by Google, Amazon Web Services and other property management and booking systems. Any payment transactions will be encrypted using SSL technology; all payment information is stored with our payment processor and is never stored on our servers. Where we have given you (or where you have chosen) a password which enables you to access certain parts of the Products, you are responsible for keeping this password confidential. We ask you not to share a password with anyone and suggest that your change your password frequently. Unfortunately, the transmission of information via the Internet is not completely secure. Although we will do our best to protect your personal information, we cannot guarantee the security of your information transmitted to the Products; any transmission is at your own risk. Once we have received your information, we will use strict procedures and security features to try to prevent unauthorized access.
What information is not secure?
We endeavor to protect the privacy of your account and other personal information that we hold in our records, but unfortunately, we cannot guarantee complete security. Unauthorized entry or use, hardware or software failure, and other factors, may compromise the security of user information. Also, while we endeavor to put adequate contractual protections in place, we cannot guarantee the security of any personal information in databases hosted by third parties.
It is important to note that any e-mail communication is not secure. This is a risk inherent in the use of e-mail. Please be aware of this when requesting information or sending forms to us by e- mail (for example, from the “Contact Us” section of our website). We recommend that you do not include any confidential information (i.e. credit card information) when using e-mail. For your protection, our e-mail responses to you will not include any confidential information.
Finally, to be prudent, please be sure to always close your browsers when you are done using a form or the reservation site. Although the session will terminate after a short period of inactivity, it is best to close your browsers immediately upon completion, especially when using a public computer.
What personal information may be provided to third parties?
We may share certain of your personal information with:
• other Oceanic LLC, and managed properties;
• agents, contractors or social media and advertising platforms or third party service
providers of Oceanic who provide services to Oceanic to better serve your needs as a guest;
• escrow agents, third party lenders and loan-servicing agents;
• a prospective buyer or investor in the event that we sell any business or assets;
• analytics and search engine providers that assist Oceanic in the improvement and optimization of the website and our mobile App;
• our professional advisors and auditors; and
• local or foreign regulators, governments, courts, law enforcement and national security authorities.
You may advise the hotel if you do not want personal preferences shared.
Where a third party is engaged by Oceanic to provide services on our behalf, Oceanic ensures these parties protect your Personal Information in a manner consistent with the principles articulated in this Privacy Notice.
In the case of third party residential property developers, the particular developer’s website can be consulted for the developer’s policy on the collection, storage and use of your personal information.
If you have chosen to join a subscription list, please note that they are only used for internal purposes and we do not sell or rent our subscription lists to anyone.
If Oceanic suspects any unlawful activity is taking place, it may investigate and/or report its findings or suspicions to the police or other relevant law enforcement agency.
Transfers of your personal information outside your home country Your personal information may be processed by Oceanic and its trusted third party suppliers anywhere in the world, including in countries where data privacy laws may not be equivalent to, or as protective as, the laws in your home country.
In particular, your personal information will be stored in your guest profile in our Central Reservation System located in USA and is available to all properties owned by Oceanic.
We will implement appropriate measures to ensure that your personal information remains protected and secure when it is transferred outside of your home country. These measures include data transfer agreements implementing standard data protection clauses. You can find out more about data transfer agreements here.
Accessing your personal information
We understand that you may like to know what personal information we hold about you. We are happy to assist you with your request. To protect your personal information, however, we require that you prove your identity to us at the time your request is made.
When you make a request in person, we will require you to produce some form of photo identification such as a passport or a driver’s license and you will be asked to sign a request form.
Where you make a request by other means, we request you contact us in writing via email, fax or letter including a copy of a government issued identification and signature. We require home and business addresses and phone numbers so we can check them with our files and satisfy ourselves as to your identity.
The above information is required to create an audit trail of how the request has been handled.
Oceanic reserves the right to decline access to your personal information under certain circumstances as permitted by law. If your personal information is not disclosed to you, you will be provided with the reasons for this non-disclosure.
You may also be entitled to:
• request the correction and/or deletion of your personal information;
• request the restriction of the processing of your personal information, or object to that processing;
• opt out from processing of your personal information for direct marketing purposes;
• withdraw your consent to the processing of your personal information (where Oceanic is processing your personal information based on your consent); and
• request the receipt or transmission to another organisation, in machine-readable form, of the personal information you have provided to Oceanic.
Where you are given the option to share personal information with Oceanic, you can always choose not to do so.
If you do not wish to receive marketing information from Oceanic, you may indicate your wishes on your registration card when you stay with us or send an e-mail to: firstname.lastname@example.org. You will always have the ability to accept or decline any form of communication from Oceanic. You may unsubscribe from electronic marketing communications at any time by selecting the “unsubscribe” link included in such communications.
If you object to the processing of your personal information, or if you have provided your consent to processing and you later choose to withdraw it, we will respect that choice in accordance with our legal obligations.
This could mean that we are unable to perform the actions necessary to achieve the purposes of processing described above (see ‘How do we use your personal information?’) or that you are unable to make use of the services offered by us.
After you have chosen to withdraw your consent Oceanic may be able to continue to process your personal information to the extent required or otherwise permitted by law. If at any time you wish to exercise any of these rights, you can do so by:
For hotel guests, contacting our Corporate Office:
via e-mail at email@example.com
via fax at (619) 780-0973
via letter – 3656 Ruffin Road, Suite A, San Diego, California, 92123
Attention: Tracy Ly
3656 Ruffin Road, Suite A, San Diego, California, 92123
How long is my Personal Information retained?
Your personal information will be stored for the period of time required by law in the jurisdiction of any hotel holding the information. This may involve retaining information following your stay. We will delete your personal information once it is no longer required for any of the purposes described above.
We will also keep your personal information where we need to do so in connection with a legal action or an investigation involving Oceanic. Any financial information Oceanic retains will be protected under the terms of this Privacy Notice.
What laws apply to this notice?
If you have any questions or concerns regarding this Privacy Notice, please contact our Data Protection Officer by writing to the following address:
Data Protection Officer
Oceanic Morro Bay LP
260 Morro Bay Blvd Morro Bay, CA 93422
Terms and Conditions
EFFECTIVE AS OF DECEMBER 11, 2019
IMPORTANT! THIS IS A BINDING LEGAL AGREEMENT (this “Agreement”).
PLEASE READ THIS AGREEMENT BEFORE USING THIS SITE.
This Agreement governs your use of this Internet site located at https://ascotsuites.com, including all webpages, applications, “Contents” (as defined below), and goods, services, features and functions provided or offered on or
through this site (collectively, the “Site”) and is by and between Oceanic Morro Bay LP and any entities affiliated with Oceanic Morro Bay LP (collectively “Oceanic,” “we”, “us” or “our”) and you, whether you are accessing the Site on your own, through an intermediary, or on behalf of any other person or entity (“you”). By viewing, accessing,
posting on, interacting or communicating with, engaging in transactions of any kind on or through (including but not limited to making reservations), and/or in any other manner utilizing this Site, and/or the Oceanic Mobile App (hereinafter, the “Application,” as referenced below) (the foregoing activities are referred to collectively as “Using” or
We reserve the right, in our sole discretion, to modify, add, or remove portions of the terms of this Agreement at any time without notice. Unless otherwise indicated, such changes will become effective immediately upon our posting of the changes on our website.
Therefore, please check our website periodically for such changes. You hereby agree that your Use of the Site following the posting of changes to this Agreement on our website means that you accept all such changes.
Please note that additional terms and conditions may apply to making reservations and/or check in and/or check out arrangements, and/or engaging in purchases and/or other transactions or activities on or through this Site or the Application. You agree to comply with the terms and conditions set forth herein and any and all such applicable additional terms and conditions.
We reserve the right in our sole discretion to revoke or deny your access to the Site and/or the Application, including, without limitation, if you violate any provision of this Agreement.
As a condition of your Use of the Site and/or the Application: (i) you must be at least 18 years of age; (ii) you must possess the legal authority and capacity to create a binding legal obligation, including to be bound by the terms of this Agreement; and (iii) your Use of the Site and/or the Application must not violate any law, statute, ordinance, rule or regulation.
You hereby represent and warrant that you satisfy all of the foregoing conditions. If you do not satisfy all of the foregoing conditions, you are not authorized to use the Site or the Application.
FOR FURTHER INFORMATION, PLEASE WRITE TO:
RESTRICTIONS ON USE OF SITE AND CONTENT
Except as set forth below with respect to “Communications” (as defined below): (i) all rights in the information, data, text, software, music, photographs, pictures, designs, graphics, logos, files, products, services, images, videos, messages, sounds, files, and other materials contained and/or displayed on the Site, the layout and design of the Site, and the selection and arrangement of material on the Site are owned or licensed by Oceanic (hereinafter the “Content”); and (ii) you may not modify, alter, download, upload, post, reproduce, distribute, publish, transmit, copy, display, transfer, sell, re-sell, perform, license or sublicense the Content or use the Content to create derivative works in any form, manner or by any means, for any commercial purpose without the prior written permission of Oceanic, and/or otherwise as specifically provided herein.
Subject to your compliance with the terms of this Agreement, we grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Content solely in connection with your permitted use of the Site and solely for your personal and for non-commercial purposes.
This Site displays or references valuable trademarks owned by Oceanic to distinguish its services (collectively, the “Marks”). The Marks and related proprietary property are protected from copying and simulation under national and international laws, and you may not reproduce, download, upload, copy or otherwise use the Marks in any manner without the express prior written permission of Oceanic.
The Site may contain or reference the Marks, and/or other trademarks, service marks, trade names, patents, copyrighted materials, trade secrets, technologies, products, processes or other proprietary rights (collectively the “IP”) owned by Oceanic and/or other parties. No license to or right in any such IP is granted to or conferred upon you and you may not use the IP for any purpose (including those identified in the restrictions provisions set forth
below), except as otherwise permitted herein or as permitted by law.
In addition to the foregoing restrictions, you further agree that in connection with your Use of the Site, you will not in any manner:
• use any devices or mechanisms, including but not limited to software, routines, malicious or unauthorized code, engines, tools, agents, robots, spiders, crawlers, data mining tools, viruses, worms, Trojan horses, malware, programs, time bombs, mail bombs, cancelbots, spam or other harmful components (hereinafter collectively “Devices”) or engage in any conduct to (i) interrupt, disrupt, alter, destroy, impair, restrict, tamper or interfere with, or otherwise hamper the proper operation of, access to or provision of services to the Site, or (ii) monitor, scrape, download or copy the Site or the Content, or any aspect thereof;
• provide or send us any information or data that includes any Devices;
• engage in any conduct that creates or is intended to create liability for Oceanic;
• decipher, decompile, disassemble or reverse engineer any of the software used in connection with the Site; violate the restrictions in any robot exclusion headers on the Site or otherwise bypass, breach or circumvent any security or authentication measures and/or other measures employed to prevent or limit access to the Site; send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam,
chain letters or other form of solicitation; forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or otherwise use or send altered, deceptive or false source-identifying information; impersonate or misrepresent your affiliation with any person or entity; collect or store from the Site any personally identifiable information regarding other users of the Site without their express permission; intercept or expropriate any system, data or information from the Site; deep-link to any portion of the Site (including, without limitation, the purchase path for any reservation services) for any purpose without our express written permission; “frame”, “mirror” or otherwise incorporate any part of the Site or Content into any other website, mobile application, product or service without our prior written authorization; use any meta tags or other hidden text or metadata utilizing the Content without our express written consent;
• engage in any conduct that: (i) infringes, misappropriates or violates any other party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) is fraudulent, false, misleading or deceptive; (iii) is defamatory, obscene, pornographic, vulgar or offensive; (iv) promotes
discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (v) is violent or threatening or promotes violence or actions that are threatening to any person or entity; (vi) promotes illegal or harmful activities or substances; or (vii) otherwise violates, or encourages any conduct that would violate, any applicable law, statute, ordinance, rule or regulation or that would give rise to civil liability; or
• encourage or enable any other individual to do any of the foregoing.
Additional restrictions on the Use of this Site are set forth in other provisions of this Agreement.
RESERVATIONS AT OCEANIC HOTELS
You shall make only legitimate reservations in good faith for use only by you and/or your invited guests and/or others on whose behalf you are authorized to act, and not for other purposes, including without limitation, reselling, impermissibly assigning or posting on third party websites, or making speculative, false or fraudulent reservations, or any reservations in anticipation of demand. We reserve the right to cancel or modify reservations in our sole discretion for any reasons, including where it appears that a customer has engaged in fraudulent or inappropriate activity or under other circumstances where it appears that the reservations contain or resulted from a mistake or error, even if such mistake or error is ours. To contest the cancellation of a booking or freezing or
closure of an account, please contact our Customer Support.
Our Site may provide you with the ability to use usernames, passwords, or other codes or devices to gain access to certain portions of our Site (“Passwords”). You are entirely responsible for maintaining the confidentiality of your Passwords and for all activities that occur under your account. We reserve the right to immediately terminate your account in our sole discretion and without prior notice to you, including, for example, if you violate
any part of this Agreement.
With respect to all communications you make available, provide or send to Oceanic, including but not limited to information, feedback, questions, comments, proposals, content, suggestions, submissions, hotel reviews, photographs, images, designs, music, videos, ideas, concepts, know-how, content, techniques and/or any other materials(“Communications”), and all Communications you post, display or upload on the Site, you grant (or warrant that the owner of such materials expressly granted) Oceanic a worldwide, non-exclusive, royalty-free, perpetual, transferable, irrevocable and fully sub-licensable right and license in our sole discretion to: (i) use, reproduce, modify, adapt, translate, distribute, publish, create derivative works from, publicly display and perform and/or otherwise use or disclose to or share with others such Communications or incorporate such Communications into any form, forum, medium, or technology for any purpose whatsoever throughout the world in any media, now known or hereafter devised, including, without limitation, the development, production and marketing of products and services that
incorporate such Communications; (ii) use the name that you submit in connection with such Communications; and/or provide attribution of your Communications (for example, by listing your name and hometown on a hotel review that you submit) at our sole discretion; and (iii) pursue at law any person or entity that violates your or our rights in the Communications by a breach of these Terms. You expressly waive any and all ‘moral
rights’ (including rights of attribution or integrity) that may subsist in your Communications.
We take no responsibility and are not liable for any Communications posted on the Site or submitted by you. We have no obligation to post your Communications and reserve the right in our sole discretion to determine whether to publish and/or keep Communications on the Site. We shall have the right (but not the obligation) to monitor and review Communications transmitted or received through the Site and to censor, edit, remove or prohibit the transmission or receipt of Communications (in whole or in part) that we deem inappropriate or in violation of this Agreement. During monitoring, your Communications may be examined, recorded or copied by us, and your use of the Site constitutes your consent to such monitoring, recording and review. The above is limited only by our
Subject to the foregoing, nothing in this Agreement shall be deemed to restrict any rights that you may have to use, modify and/or otherwise exploit your Communications. Please do not send us any confidential messages, and please use Internet e-mail only to send us non-confidential messages. Do not include confidential personal or private
information. Please do not use Internet e-mail to send us transaction instructions (including, for example, instructions that include credit card, wire transfer, routing, banking or other confidential information). Customers who choose to send Internet e-mail messages to Oceanic that contain confidential, private or personal information do so
entirely at their own risk.
We strive to provide our products and services in a manner that is accessible to all of our customers, and respect the dignity and independence of people with disabilities.
THIRD PARTY SITES AND MATERIALS
This Site contains links to websites and resources operated by parties other than us, who may provide goods and/or services and whose websites may link to our Site (hereinafter “Third Party Sites”). Such links are provided for your convenience only. We do not control such Third Party Sites and are not responsible for their content or accuracy. We make no warranties regarding and are not liable or responsible for them, for links displayed on such
websites or for any third party materials, products, or services that you purchased, rent, lease or otherwise acquire from such Third Party Sites. The inclusion on the Site of links to Third Party Sites does not imply any endorsement or accuracy of the material on such websites or any association with their operators. You acknowledge sole responsibility for and assume all risk arising from your use of any Third Party Sites.
OCEANIC’S RIGHT TO MAKE CHANGES Oceanic reserves the right to make changes, corrections, cancellations and/or improvements to the Site and Content, and the products, services and programs described therein at any time without notice, including after confirmation of a transaction.
INDEMNIFICATION AND RELEASE
You hereby indemnify, defend and hold us and the hotels we and our affiliates manage and each of our respective owners, parents, partners, subsidiaries, affiliates, franchisees, officers, directors, agents, contractors, subcontractors, attorneys, guests, residents, visitors, licensees, invitees, permittees and employees (collectively, the “Indemnified Parties”) harmless from and against any and all allegations, demands, claims, liabilities, damages, fines, penalties, liens, actions, agreements, suits, causes of action, obligations, controversies, debts, expenses, judgments, orders and liabilities or costs of whatsoever nature (including attorneys’ fees), including without limitation, claims for wrongful death of or injury to any person, loss of or damage to any property, infringement or violation of any intellectual property or personal rights (including without limitation, copyright, patent, trade secret, trademark, service mark, domain name, artist, droit moral, privacy, and/or publicity related rights, or defamation) or violation of any other rights of any kind (hereinafter each a “Claim” and collectively, “Claims”) which arise out of, concern, pertain or relate in any way to: (i) this Agreement (including without limitation, a breach by you of this Agreement; (ii) the Site, including but not limited to the Use of or inability to Use or access the Site or the Application or the functioning or non-functioning of the Site or Application; (iii) the Content; (iv) Third Party Sites; (v) the Communications; (vi) the Passwords; (vii) the IP; (viii) any act or omission by you, including without limitation, any transaction in which you engage on and/or in connection with the Site, the Application and/or any Third Party Sites; and/or (ix) the performance or failure to perform by the Indemnified Parties in connection with any transaction, or activity on or relating to the Site, the Application and/or any Third Party Sites (hereinafter subsections (i)-(ix) of this
section are referred to as the “Claims List”).
By utilizing the Site, you, and (if applicable) each of your respective officers, employees, directors, shareholders, parents, subsidiaries, alter egos, affiliates, partners, agents, attorneys, accountants, heirs, executors, administrators, conservators, trustees, successors and assigns hereby fully and forever release and discharge the Indemnified Parties from any and all Claims, whether or not caused by or contributed to by the negligence of any of the Indemnified Parties, and whether now known or suspected, which existed or may have existed, or which do exist or which hereafter can, shall or may exist, based on any facts, events or omissions occurring from any time on or prior to the effective date of this Agreement and/or any modifications of this Agreement arising out of, concerning, pertaining or relating in any manner to the items listed in the Claims List. You have been advised of the existence of Section 1542 of the California Civil Code (“Section 1542”),
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. NOTWITHSTANDING SUCH PROVISION, this release shall constitute a full release in
accordance with its terms. You knowingly and voluntarily waive the provisions of Section 1542, as well as any other statute, law or rule of similar effect. In connection with this release and such waiver and relinquishment, you acknowledge that you are aware that you may hereafter discover Claims presently unknown or unsuspected, or facts in addition to or different from those which you now know or believe to be true, with respect to the matters released herein. Nevertheless, it is your intention, through this Agreement, and with the advice of counsel, fully and finally settle and release all such matters, and all Claims relative thereto, which do now exist, may exist, or have existed between and among the parties hereto, including the Indemnified Parties. You hereby acknowledge that you have
been advised by your legal counsel regarding – or after having had the opportunity to consult with counsel but having elected not to do so, understand and acknowledge the significance and consequence of – this release and of this specific waiver of Section 1542 and other such laws.
DISCLAIMER AND LIMITATION OF LIABILITY AND WAIVER
Your Use of the Site and the Application is at your own risk. The Site and the Application are provided “as is” and on an “as available” basis without representations or warranties of any kind, either express, implied or statutory. To the maximum extent permissible pursuant to applicable law, on behalf of the Indemnified Parties, we expressly disclaim all warranties, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, design, accuracy, capability, sufficiency, suitability, capacity, completeness, availability or compatibility, or arising from course of dealing or course of performance. We expressly exclude, and you hereby waive any liability on the part of the Indemnified Parties for any special, indirect, direct, incidental, consequential or punitive damages or any other damages whatsoever, including but not limited to loss of profits, data, income, revenue, business, contracts, savings or anticipated savings, goodwill or cost of cover, or wasted management, business, personal or office time, arising out of or relating to the Site, the Application or the Content,
and whether caused in whole or in part by negligence, acts of god, telecommunications failure, theft, destruction or any other reason.
In particular, and without limitation, we make no oral, written or any other representations, warranties or endorsements regarding the Application, the Content or the Site (including but not limited to the Use and/or operation of the Site), and disclaim any and all liability regarding the Application, the Content and the Site (including but not limited to the Use and/or operation of the Site).
If you are dissatisfied with the Site or any aspect thereof, or members or suppliers associated herewith, as the case may be, your sole and exclusive remedy shall be to discontinue use of the Site.
OUR LIABILITY AND/OR RESPONSIBILITY FOR PRODUCTS AND/OR SERVICES PROVIDED ON OR THROUGH THE SITE IS LIMITED TO DAMAGES ARISING FROM OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. YOUR REMEDY IS LIMITED TO REPLACEMENT OF SUCH PRODUCTS OR SERVICES. WITH RESPECT TO PRODUCTS OR SERVICES ON THE SITE FOR WHICH WE ARE NOT THE ACTUAL PROVIDERS OF SUCH PRODUCTS AND SERVICES, WE DISCLAIM ANY AND ALL LIABILITY RELATING TO THEM. SHOULD YOU HAVE ANY ISSUES WITH SUCH PRODUCTS AND SERVICES, YOU AGREE THAT YOUR SOLE RECOURSE IS WITH THE MERCHANT OR SERVICE PROVIDER WHO PROVIDED SUCH PRODUCTS AND SERVICES AND NOT WITH US.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE US AND YOU. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOU AND THESE TERMS. ELECTRONIC COMMUNICATIONS PRIVACY ACT NOTICE (18 U.S.C. 2701-2711)
We make no guarantee of confidentiality or privacy of any Communications or information transmitted on the Site or any website linked to the Site. We will not be liable for the privacy of Communications and/or any other information, e-mail addresses, registration and identification information, disk space, confidential or trade-secret information, or any other content transmitted over networks accessed by the Site, or otherwise connected with your use of the Site.
You and we are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
(NO JURY TRIAL OR CLASS ACTION, ARBITRATION, NY COURT ACTIONS)
1. No Jury Trial or Class Action
YOU ACKNOWLEDGE AND AGREE THAT YOU AND WE ARE EACH WAIVING ANY RIGHT YOU OR WE MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING
REGARDING ANY “DISPUTES” (AS DEFINED BELOW), INCLUDING ANY “IP PROTECTION ACTION” (AS DEFINED BELOW) AND “OTHER ACTION” (AS DEFINED BELOW).
You and we agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity hereof or the Use of the Site or regarding Communications, Passwords or Claims (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court, and (ii) 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 copyrights, trademarks, trade secrets, patents or other intellectual property rights (“IP Protection Action”).
Unless both you and we otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class, jury or representative proceeding. If this “Arbitrator Restrictions” section is held unenforceable, then the entirety of this “Arbitration” section will be deemed void, and the parties shall be bound by the surviving dispute resolution sections of this Agreement. Except as provided in the preceding sentence, this “Arbitration” section will survive any termination of this Agreement.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the
interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015820 and a separate form for California residents at https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822). The arbitrator shall be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA
will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and we otherwise agree, the arbitration will be conducted in the county where our property is located. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and we submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Disclaimer and Limitation of Liability and Waiver” section above as to the types and amounts of damages for which we may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. We will not seek, and hereby waive all rights we may have under applicable law to recover, attorneys’ fees and expenses if we prevail in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Notwithstanding the terms of this Agreement permitting us to change the terms hereof, if we change this “Dispute Resolution” section after the date you first accepted the terms of this Agreement (or accepted any subsequent changes to the terms hereof), you may reject any such change by sending us written notice to the address set forth below under “Contact Information” within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of our email to you (if any) notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and us in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted the terms of this Agreement (or accepted any subsequent changes to the terms hereof).
You agree that regardless of any statute or law to the contrary, you must submit any Disputes for arbitration within one (1) year after such claim or cause of action arose or be forever banned.
3. Court Actions
The exclusive jurisdiction and venue of any IP Protection Action, and for any other action regarding Disputes that results if the “Arbitrator’s Restrictions” section or the entire “Arbitration” section is held unenforceable (hereinafter “Other Action”) shall be appropriate courts in the State of California or, if there is no federal jurisdiction over the
action, in the courts of the State of California (hereinafter collectively, the “Courts”), and you hereby consent to, and waive all defenses of lack of personal jurisdiction, venue and/or forum non conveniens with respect to venue and jurisdiction in the Courts.
You further acknowledge and agree that any violation of our IP rights and/or breach of this Agreement may result in irreparable damage or injury to us for which we will not have an adequate remedy at law. Accordingly, in addition to any other remedies and damages available to us, you acknowledge and agree that in the event that we reasonably determine that you have in any manner violated or threatened to violate our IP rights and/or that you have breached this Agreement and that such breach is causing or may cause us irreparable damage, we shall be entitled to immediate and permanent injunctive relief, without any requirement to post a bond or other security, and you agree that you shall not contest our right to such relief.
If we prevail in an IP Protection Action or Other Action, we will be entitled to recover from you, and you agree to pay, all reasonable attorney’s fees, the costs of such actions, in addition to any other relief to which we may be entitled, including but not limited to monetary damages. Moreover, you agree that we may debit your credit or debit card or charge you for any such amounts.
You agree that regardless of any statute or law to the contrary, you must commence a lawsuit regarding any IP Protection Action or Other Action within one (1) year after such claim or cause of action arose or be forever banned.
Except to the extent that applicable law in your country of residence requires application of another law and/or jurisdiction and provides that such application of another law and/or jurisdiction cannot be waived or altered by contract, this Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. In any event, this Agreement will not be governed by the United Nations Convention on contracts for the international sale of goods.
Except as otherwise provided herein, if any provision of this Agreement is found by a court to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
No failure or delay on our part in exercising any right or remedy hereunder or enforcing the terms and conditions of this Agreement will operate as a waiver thereof. Except as expressly set forth herein, no waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall any waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by an authorized representative of the party making the waiver.
Except as expressly set forth in this Agreement, the exercise by either party of any remedies under the terms of this Agreement will be without prejudice to any other remedies available under the terms hereof or otherwise available.
You agree that you will execute and deliver to us, in recordable form if necessary, such further documents, instruments or agreements, and shall take such further action, that may be necessary or appropriate to effectuate the purposes of this Agreement.
Any notices or other communications provided by us under this Agreement, including those regarding modifications of the Agreement, will be given: (i) via email; or (ii) by posting to the Site or the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
If you have any questions about this Agreement, please contact us at
NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT PURSUANT TO THE DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”)
Oceanic has registered an agent with the United States Copyright Office in accordance with the terms of the United States Digital Millennium Copyright Act, 17 U.S.C § 512 (the “Act”) and avails itself of the protections under the Act. We reserve the right to remove any content posted by a visitor to the site (“User Content”) that allegedly infringes another person’s copyright in the United States. We are under no obligation to, and do not, scan content posted for any violations of third party rights, however, we respect the copyright interests of others and it is our policy not to permit materials known by us to infringe another party’s copyright to remain on the site. If you believe any materials on the site infringe a copyright, you should provide us with written notice that at a minimum contains:
• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works;
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, such as the inclusion of the URL for the material that is claimed to be infringing or the subject of
• Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address;
• A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
• A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
All DMCA notices should be sent to our designated agent as follows:
Oceanic Morro Bay LP
260 Morro Bay Blvd Morro Bay, CA 93422
COUNTER-NOTICE. If your User Content has been removed from the site in response to Oceanic’ receipt of a DMCA Notification as outlined above, and you believe the removalwas inappropriate, you may submit a DMCA Counter-Notification by contacting our designated agent at the address listed above, and provide the agent with the following information:
• Your physical or electronic signature;
• Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or access to it was disabled;
• A statement under penalty of perjury that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content to be removed or disabled;
• Your name, address, telephone number, and, if available, your e-mail address; and
• A statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district for which jurisdiction for Oceanic may be found, and that you will accept service of process from the person who submitted the DMCA notification or an agent of such person.