Terms & Conditions

 

Last Updated: 08/09/2020

Welcome to the retail website of Ocean Providence New York LLC. d/b/a opfishmarket.com (“OPFM,” “we,” “us,” or “ours”), located at https://opfishmarket.com (the “Website”). OPNY offers services on the Website (the “Services”), including the sale of products available on the Website (“Products”). By browsing the Website or using the Services including the purchase and sale of Products, you acknowledge that you have read and understood, and agree to be legally bound by these Terms & Conditions and by our Privacy Policy, hereby incorporated herein, and to comply with all applicable federal, state, and local laws and regulations. If you do not accept these Terms & Conditions, then you are not granted permission to and may not browse, access, or otherwise use the Website or the Services.

OPNY welcomes you to the Website to learn about our Services and the Products without charge or registration. You may use the Services to purchase Products via the Website.

PLEASE NOTE: THE SECTION BELOW TITLED “AGREEMENT TO ARBITRATE” CONTAINS A BINDING ARBITRATION AGREEMENT WHICH AFFECTS YOUR LEGAL RIGHTS. PLEASE READ IT.

Product Purchases.

OPNY  is a seafood distributor located at 76 Apollo St., Brooklyn, NY.

A request to purchase Products made through the Website is an Order. All OPNY products are highly perishable, and you agree to have someone available to receive your Order during the time and date scheduled by you.

If you need to cancel or reschedule an order, please contact info@opfishmarket.com 48 hours before the delivery date.

OPNY will use commercially reasonable efforts to honor Order cancellations or changes, but cannot guarantee attempted changes to an Order after you submit it.

OPNY will endeavor to provide you with a fully satisfying experience every time you order from the Website. However, OPNY shall not be obligated to accept returns of Products. In the case of complaints, please be prepared to provide photographic evidence. If a Product is not as described, please request a credit or refund of the funds paid for such Product. Determination of credits or refunds will be made by OPNY. You agree that will be the only remedy available to you.

Content.

The Website contains materials, such as data, text, graphic, images, sound recordings, audiovisual works, Product descriptions, Product photos and titles, list prices and other materials provided by OPNY (“OPNY Content”). You have no rights in the OPNY content. OPNY will make commercially reasonable efforts to ensure that all descriptions and images of Products are as accurate as possible. However, OPNY does not warrant that the descriptions or other content of the Website are accurate, complete, reliable, current or error-free.

Intellectual Property Rights.

Content. The OPNY Content is protected under applicable intellectual property laws. Except as may be specifically authorized by OPNY, you are prohibited from using the OPNY Content (including any OPNY Trademarks, as defined below) for any purpose including, without limitation, any use that is likely to cause confusion on the part of, to cause mistake by, or to deceive, the public as to any affiliation, connection, association, origin, sponsorship, approval or endorsement by or with OP. Unauthorized use of the Content will violate these Terms & Conditions and may violate applicable laws. You hereby agree: (i) you have no rights in or to the Content, and you will not use the Content except as permitted under these Terms & Conditions; (ii) to retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content, (iii) not to sell, transfer, assign, license, sub-license, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use or exploit the Content in any way for any public or commercial purpose. Use or posting of the Content on any other website, in a networked computer environment, or in any other forum for any purpose is expressly prohibited.

Security. You may not to disable or otherwise interfere with security-related features of the Website, including any features that prevent or restrict use or copying of any Content or Services, or enforce limitations on use of the Website, the Services or the Content. You shall not recompile or disassemble, reverse engineer or otherwise attempt to discover, acquire, copy or emulate any source code or object code contained in the Services or the Website.

Trademarks.

OPNY is the owner of certain trademarks, service marks and logos (registered and unregistered) (the “OPNY Trademarks”). Trademarks and service names and logos other than the OPNY Trademarks may also appear on the Website. Such marks belong to their respective owners. Such persons or entities may or may not endorse or be affiliated with or connected to OPNY. Nothing on the Website should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the OPNY Trademarks displayed on the Website, unless our prior written permission in each instance has been given to you.

Acceptable Use Policy.

By accessing and/or using the Website or the Services, You hereby agree that you will not use the Services for any unlawful, inappropriate, or offensive purpose.

Links to Other Web Websites.

This Website may periodically provide links to third party websites (“Third-Party Websites”) and/or other websites operated by OPNY or OPNY affiliates (“Other OPNY Websites”). These Terms & Conditions govern only this Website and not any Third Party Websites or Other OPNY Websites. A link by OPNY to a Third-Party Website shall not be deemed an endorsement of the content, products or services in that linked Third Party Website. Please access linked Third-Party Websites at your own risk. Kindly direct any concerns regarding any Third-Party Websites to the administrator of the applicable Third-Party Website.

Do not link to the Website from any other websites unless establishment of such a link is approved in advance by us in writing. Do not "frame" any elements of the Website with any other website.

Search Engines.

These Terms & Conditions apply whenever anyone accesses the Website, a Service, or any Content, or any portion thereof, in any manner whatsoever, regardless of whether the access is obtained by logging into the URL, or by accessing in any other way or otherwise using the IP address of the Website, or accessing the server from which OPNY or its agent hosts the Website. The Terms & Conditions shall also apply for any other manner of accessing the Content (including, without limitation, crawling, scrapping, or otherwise obtaining data or information).

 It is a violation of these Terms & Conditions for anyone to (i) collect, copy, display or create derivative works of the Website’s Content, (ii) crawl, scrape or engage in similar activities, or (iii) use automated means, such as data mining, or the use of robots, crawlers, spiders, or similar data gathering mechanisms, extraction tools and the similar devices on the Website for any purpose.

By accessing the Website, you agree not to use any means or measures whatsoever to circumvent, thwart, or work around any technological measure that is in place to prevent unauthorized use of the Website, its Content, or the Services. You further agree to refrain from copying, aggregating, displaying, distributing, or making any derivative use of any Content whether done directly or indirectly.

By accessing the Website, you agree not to use any data or information available on the Website for any purpose other than to place Orders or otherwise use the Services. This agreement specifically applies but is not limited to the use of software, programs, applications and services for use or operation on or by any computer and/or any electronic, wireless and/or mobile device, technology or product that exists now or in the future.

Unauthorized use of Website Content and/or circumventing, thwarting, or working around any technological restriction or security measure on the Website and/or violating any provision of these Terms & Conditions is expressly prohibited. For purposes of this paragraph, you acknowledge and agree that cached copies of the Website pages on your computer or computer server constitute "copies" under the Copyright Act, 17 U.S.C. § 101. For purposes of this paragraph, you further agree that CAPTCHAs and telephone verification are "technological measures" that effectively control access to copyright-protected components and rights of OPNY pursuant to 17 U.S.C. § 1201.

Security of the Website.

Unauthorized use or attempted unauthorized use of the Website, the Content or the Services may result in criminal and/or civil prosecution. OPNY reserves the right to view, monitor, and record activity on the Website without notice or permission from you. Any information obtained by monitoring, reviewing, or recording may be subject to review by law enforcement organizations in connection with investigation or prosecution of possible illegal activity on the Website. OPNY will also comply with all court orders as well as all law enforcement and regulatory inquiries involving requests for such information.

Termination.

We may terminate these Terms & Conditions and your access to all or any part of the Website, the Content or the Services at any time and for any reason without prior notice, and you agree that no liability on the part of OPNY shall result therefrom. We reserve the right to modify, or discontinue, temporarily or permanently, all or any part of the Website, the Content or the Services at any time without prior notice or resulting liability.

Warranty Disclaimer.

OPNY, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (COLLECTIVELY THE “OPNY PARTIES”) HEREBY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS ABOUT THE WEBSITE, THE SERVICES (INCLUDING THE PRODUCTS, AND PURCHASE AND SALE OF THE PRODUCTS), OR THE CONTENT INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANT ABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. THE WEBSITE, THE SERVICES (INCLUDING THE PRODUCTS, AND PURCHASE AND SALE OF THE PRODUCTS) AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND.

Limit of Liability.

IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS ARISING OUT OF THE ALLEGED ACTIVE OR PASSIVE NEGLIGENCE OF THE OPNY PARTIES: (I) THE OPNY PARTIES, OR ANY OF THEM, SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM BUSINESS INTERRUPTION) RESULTING FROM YOUR USE OR INABILITY TO USE THE WEBSITE, THE SERVICES OR THE CONTENT, THE PRODUCTS OR YOUR PURCHASE OF PRODUCTS AVAILABLE THROUGH THE WEBSITE, EVEN IF THE OPNY PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE WEBSITE, THE SERVICES, THE CONTENT, THE PRODUCTS OR YOUR PURCHASE OF PRODUCTS AVAILABLE THROUGH THE WEBSITE SHALL BE LIMITED TO THE MONIES YOU HAVE PAID US IN CONNECTION WITH THE SAME DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.

SOME STATES DO NOT ALLOW EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS ON WARRANTIES MAY NOT APPLY TO YOU.

Indemnity.

You agree to defend, indemnify, and hold the OPNY Parties harmless from and against any and all claims, losses, liabilities, and expenses (including attorneys’ fees) arising from: (i) any breach by you  of these Terms & Conditions, or (ii) any violation by you of any third party right including, without limitation, any intellectual property right, privacy right, or right of publicity. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense. This defense and indemnification obligation will survive termination, modification or expiration of these Terms & Conditions.

Agreement to Arbitrate.

In the event of a dispute arising under or relating to these Terms & Conditions, the Privacy Policy, the Website, the Services, or the Content, including any claim based on a federal or state statute (each, a “Dispute”), either party may elect to finally and exclusively resolve the Dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate a Dispute, at any time, shall be final and binding on the other party. ARBITRATION IS A WAIVER OF THE RIGHT TO BRING A LAWSUIT IN COURT. THE RULES IN ARBITRATION ARE DIFFERENT. THERE IS NO JUDGE OR JURY, AND DISCOVERY AND APPEAL RIGHTS MAY BE LIMITED. If either party chooses arbitration, neither party shall have the right to litigate a Dispute in court or to have a jury trial, except as set forth under the “Exceptions to Agreement to Arbitrate” provision below.

Arbitration Procedures. All Disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in New York, New York. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. This Agreement to Arbitrate shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

Arbitration and Attorneys’ Fees. Payment of all filing, administration and arbitrator fees and costs will be governed by the JAMS’ rules and governing law. OPNY will not seek its attorneys’ fees or costs in arbitration unless the arbitrator determines your claims or defenses are frivolous.

Exceptions to the Agreement to Arbitrate. Either party may bring a claim in a small claims court located in the City of New York if the claim is permitted by such court’s rules and is within such court’s jurisdiction. Moreover, either party may bring a lawsuit in court solely for injunctive relief to: (i) stop the unauthorized use or abuse of the Services; (ii) stop intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights), or (iii) protect proprietary interests. The parties agree that an actual or threatened violation of intellectual property rights and confidential and proprietary information will cause irreparable harm and that remedies at law would be inadequate to redress any actual or threatened violation thereof.

Judicial Forum for Disputes. In the event that this Agreement to Arbitrate is found not to apply to you or your claim, you and OPNY agree that any judicial proceeding (other than small claims actions) will be brought in a federal or state court located in New York City. Both you and OPNY consent to venue and personal jurisdiction there.

Miscellaneous.

These Terms & Conditions are governed by the internal substantive laws of the State of New York, without respect to its conflict of law provisions. You acknowledge that your access to the Website, the Services and/or the Content constitutes a volitional action made within the State of New York, and you expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in the State of New York.

The failure of OPNY to exercise or enforce any right or provision of the Terms & Conditions shall not constitute a waiver of such right or provision.

The following provisions shall survive termination or expiration of these Terms & Conditions: “Intellectual Property,” “Warranty Disclaimer,” “Limitation of Liability,” “Indemnification,” and “Miscellaneous.”

These Terms & Conditions, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by OPNY without restriction. Any assignment or transfer by you shall be null and void. These Terms & Conditions shall inure to the benefit of and be binding upon each party's successors and our permitted assigns.

You shall comply with all laws, rules, and regulations which are now or hereinafter promulgated by any government authority or agency which govern your use of the Website and the Services. Without limiting the generality of the foregoing, you expressly agree to comply with such restrictions to the extent that such restrictions prohibit the export or re-export of any of the Products to countries or persons prohibited under the export control laws of the United States. All rights not expressly granted herein are reserved by OPNY and any of its licensees.

Questions.

Thank you for your cooperation. Questions or comments regarding this Website and/or the Services, including any reports of non-functioning links, should be submitted using our email address info@opfishmarket.com or via U.S. mail to Ocean Providence New York LLC, 76 Apollo St., Brooklyn, NY 11222. We will use commercially reasonable efforts to respond in a timely manner.