TERMS OF USE
(Lasted Updated: [9/8/2023])
These Terms of Use (“Terms”), among other things, govern your use of the FourSeasonsYachts.com website and other digital platforms and online channels (collectively, “Digital Offerings”) that are owned, operated, licensed, or controlled by Marc-Henry Cruise Holdings LTD or its affiliated companies (collectively, “MHCH”, “we”, “us” or “our”). References to “you” or “your” throughout these Terms means each individual who accesses or uses any Digital Offerings.
THESE TERMS ARE IMPORTANT. THEY AFFECT YOUR RIGHTS. PLEASE READ THESE TERMS CAREFULLY AND MAKE SURE THAT YOU UNDERSTAND EACH PROVISION AS THEY CONTAIN IMPORTANT INFORMATION ABOUT THE DIGITAL OFFERINGS PROVIDED TO YOU. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. PLEASE CAREFULLY REVIEW THE SECTION TITLED “ARBITRATION” FOR MORE INFORMATION. THESE TERMS LIMIT MHCH’S LIABILITY AND THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
By accessing or using the Digital Offerings, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, do not access or use the Digital Offerings. These Terms expressly supersede prior agreements, understandings, or arrangements with you regarding the subject matter of these Terms. Separate supplemental terms may apply to certain Digital Offerings, such as policies for a particular program, activity or promotion, and such supplemental terms will be disclosed to you in connection with the applicable Digital Offering(s). Supplemental terms are in addition to, and shall be deemed a part of, these Terms for the purposes of the applicable Digital Offerings. In the event of a conflict between any provision contained in any supplemental terms and the terms and conditions set forth in these Terms, such conflicting provision contained in such supplemental terms shall prevail.
TABLE OF CONTENTS FOR TERMS OF USE
I. Updates to Terms and to Digital Offerings
II. Personal Information
III. Accounts
Registration
Modification and Termination of Accounts or Digital Offerings
IV. License, Use, and Restrictions for Digital Offerings
V. Third Party Merchants, Offerings and Terms
VI. Purchases through Digital Offerings
VII. Term and Termination
VIII. Intellectual Property
IX. Disclaimers
X. Limitation of Liability
XI. Indemnification
XII. Disputes and Limitations on Time to File Claims
XIII. Arbitration
Agreement to Binding Arbitration
Rules & Governing Law
Process
Location and Procedure
Arbitrator’s Decision
Changes
Severability and Survival
XIV. Other Provisions
Choice of Law
General
Communications
DMCA Notice
Notice to California Residents
I. Updates to Terms and to Digital Offerings
We may amend these Terms from time to time. Amendments will be effective as of the date we post such amendments on the website at https://fourseasonsyachts.com/legal-notice. Your continued access or use of the Digital Offerings after such notice and posting confirms your consent to be bound by the Terms, as amended. If you disagree with the amended terms, do not continue to use the Digital Offerings.
You acknowledge and agree that MHCH may modify (or otherwise discontinue) any Digital Offering in any way and at any time, with or without notice. MHCH shall have no liability for any such change or discontinuance. You further acknowledge and agree that, while we have attempted to provide accurate information on the Digital Offerings, such information may change frequently and in no event will MHCH be responsible for the accuracy, timeliness, reliability, usefulness, or completeness of any information, materials, or other content, or that any such information, materials, or other content is the most up-to date.
II. Personal Information
Our collection and use of personal information in connection with the Digital Offerings is defined and described in the privacy policy located at https://fourseasonsyachts.com/privacy-notice, which may be amended from time to time (“Privacy Policy”). The Privacy Policy is incorporated into and forms part of these Terms.
III. Accounts
Registration
In order to use certain aspects of the Digital Offerings, you must hold and maintain an active personal account with us (“Account”). For current registered users of fourseasons.com, you may be eligible to expand your registered account to an Account by following the instructions provided on your account page and agreeing to these Terms.[LV1] You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account or use Digital Offerings. Account registration requires you to submit to us certain personal information, such as your name and mobile phone number. By agreeing to the Terms you represent (i) that you are at least 18 years old and reside in a state, region, or country in which the Digital Offerings may legally be provided, (ii) you are the person whose name and other information have been provided for the account that you have or are creating, (iii) that you have not previously been suspended or removed from the Digital Offerings, and (iv) that your registration and your use of the Digital Offerings is in compliance with any and all applicable laws and regulations. If you are using the Digital Offerings on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to these Terms and you agree to be bound by these Terms on behalf of such organization. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information may result in your inability to access or use all or certain aspects of the Digital Offerings.
All the information that you supply to MHCH in creating and otherwise maintaining your Account must be accurate. You are responsible for all activity that occurs under your Account and for maintaining the confidentiality of your Account and password. Unless otherwise permitted by MHCH in writing, you may only possess one Account. You may not authorize third parties to use your Account.
Modification and Termination of Accounts or Digital Offerings
MHCH may suspend or terminate your Account and access to all or certain aspects of the Digital Offerings, with or without notice, for any reason (including if you violate any provision contained in these Terms). Upon any suspension or termination of your Account, all or certain aspects of the Digital Offerings associated with your suspended or terminated Account may be suspended or otherwise made inaccessible by MHCH. You agree to hold MHCH harmless from and against any and all claims, losses or damages arising from any suspension or termination of your Account or any Digital Offering.
You may terminate your Account by emailing legal.notices@fsymh.com.
IV. License, Use, and Restrictions for Digital Offerings
Subject to your continued compliance with these Terms, MHCH grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the applicable Digital Offering(s) solely for your personal, non-commercial use and (ii) access and view any content, information and related materials that may be made available through such Digital Offering(s) solely in connection with clause (i). Any rights not expressly granted herein are reserved by MHCH.
You will not: (i) remove, obscure, or modify any copyright, trademark or other proprietary notices from any portion of the Digital Offerings; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, or otherwise exploit the Digital Offerings (including any of the content, information, or related materials that may be available through such Digital Offering(s)); (iii) decompile, reverse engineer, or disassemble any of the Digital Offerings; (iv) link to, mirror or frame any portion of any of the Digital Offerings; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of any of the Digital Offerings or that otherwise unduly burden or hinder the operation and/or functionality of any aspect of the Digital Offerings; (vi) attempt to gain unauthorized access to or impair any aspect of any Digital Offering or its related systems or networks; (vii) use any Digital Offering in any manner that could cause harm, nuisance, annoyance, inconvenience, damage, or adversely affect any person or our reputation or property; (viii) use any Digital Offering in violation of (or in any attempt to abuse, exploit or circumvent) any applicable laws, rules, or regulations or for any unlawful, fraudulent, deceitful, illegal, dishonest, or misrepresentative purpose; or (viii) conduct or perform any denial-of-service attack or a distributed denial-of-service attack.
V. Third Party Merchants, Offerings, and Terms
In connection with Four Seasons Yachts,your voyage on any ship, or any then-available Account benefits, certain services or other offerings may be offered on the Digital Offerings, which will be fully or partially fulfilled by third-party providers (“Merchants”). You understand that MHCH does not operate or control the products, services, or other offerings offered or provided by such Merchants and is not responsible for information provided by you to Merchants. All agreements, rules, policies (including privacy policies), and operating procedures of Merchants will apply to you while on any Merchant sites. Merchants are responsible for all aspects of order processing, fulfillment, billing, and customer service. MHCH is not responsible for the content, accuracy, or opinions expressed on such Merchant sites and such sites are not investigated, monitored or checked for accuracy or completeness by us. Inclusion of any linked Merchant site does not imply approval or endorsement of the linked site by MHCH. MHCH is not a party to the transactions entered into between you and any Merchant. MHCH and the Merchants are independent contractors and neither party has authority to make any representations or commitments on behalf of the other. You agree that use of ANY MERCHANT SITE or purchase from ANY such Merchant is AT YOUR SOLE RISK AND IS WITHOUT WARRANTIES OF ANY KIND BY MHCH, EXPRESSED, IMPLIED, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, FITNESS FOR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT. UNDER NO CIRCUMSTANCES IS MHCH LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND ANY MERCHANTS, ANY INFORMATION APPEARING ON MERCHANTS’ SITES, OR ANY OTHER SITE LINKED TO THE FOURSEASONSYACHTS.COM SITE OR ANY PRODUCTS OR SERVICES OF SUCH MERCHANTS
VI. Purchases Through Digital Offerings
You understand that you may be eligible to make certain purchases through the Digital Offerings and such purchases may be governed by separate terms and conditions of sale or other terms of use. Such separate terms and conditions of sale or other terms of use may be provided to you through the Digital Offerings or through other methods of communication.
If you make a purchase through any Digital Offering, you represent and warrant that the information you have provided in connection with such purchase is accurate, that you are authorized to use the payment method provided, and that you will notify us in connection with any changes to such payment method.
MHCH reserves the right to refuse or cancel any order prior to delivery. Some situations that may result in your order being cancelled include system or typographical errors, inaccuracies in offering or pricing information or offering availability, or problems identified by MHCH relating to credit or fraud. MHCH may require additional verification or information before accepting an order. We will contact you if any portion of your order is cancelled or if additional information is required to accept your order.
You also agree and acknowledge that you will be solely responsible for paying all direct or indirect federal, state and local taxes, duties, levies, premiums, fees and other assessments of any kind in connection with any purchase made through any Digital Offering even if MHCH is required by law to collect and remit such taxes, duties, levies, premiums, fees, or other assessments to the applicable governmental authority.
VII. Term and Termination
These Terms shall commence upon your use of or access to any Digital Offering and shall continue until terminated.
You or MHCH may terminate these Terms (including, but not limited to, your Account and your access to the Digital Offerings) at any time and for any reason. You may terminate your Account and these Terms at any time by contacting legal.notices@fsymh.com.
Upon termination of these Terms or any closure of your Account (whether closed voluntarily by you, closed by MHCH, occurring in connection with any termination of these Terms, or otherwise): (i) these Terms and all rights granted to you under these Terms shall cease (except those expressly surviving or which by their nature would survive as set forth in the Section titled “General”); (ii) all access to Digital Offerings (including your Account) will cease; (iii) you will be billed for, and MHCH may automatically attempt to collect from your designated payment method, any outstanding amount owed; and (iv) all of your data will (at our sole option) be deleted from our servers and backup systems and MHCH may not have or keep backup of the data. You agree to hold MHCH harmless from and against any and all claims, losses or damages arising from any closure of your Account. You are not permitted to access your Account or any of the Digital Offerings associated with your Account following any closure.
If you continue to use any public Digital Offering(s) (such as our websites) following any termination of these Terms (including, but not limited to, any termination of your Account or of your access to the Digital Offerings), then you agree and acknowledge that any subsequent use of such public Digital Offering(s) (including any browsing of our websites) shall be governed by and subject to the then-current Terms as of your subsequent use of such public Digital Offering(s).
VIII. Intellectual Property
The Digital Offerings and their contents, features, and functionality (including, but not limited to, any content, text, images, software, graphics, code, compilation, and the design, selection, and arrangement thereof) are owned or licensed by MHCH, its licensors, or other third party licensors or providers and are protected by United States and international laws applicable to intellectual property (including, but not limited to, copyright, trademark, and other intellectual property laws). You are not permitted to copy, redistribute, publish, use, or take any other action with respect to the Digital Offerings except for the limited usage rights granted to you in the Section titled “License, Use and Restrictions for Digital Offerings”. You do not acquire any ownership or other rights to the Digital Offerings (including to any content, text, images, software, graphics, code, compilation, or the design, selection, or arrangement thereof).
The trademarks, service marks, trade names, logos, copyrights and all related names, logos, products, services, designs, and slogans contained in, or referenced on, the Digital Offerings are owned or licensed by MHCH and you must not use any of the foregoing without the prior written consent of MHCH (and, with respect to the “Four Seasons” trademarks, service marks, trade names, logos and copyrights that are licensed by MHCH from Four Seasons Hotels Limited and/or its affiliates, the prior written consent of Four Seasons Hotels Limited).
If you choose to provide input, suggestions, or other feedback regarding the Digital Offerings, then you hereby grant MHCH an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit such input, suggestions, or other feedback in any manner and for any purpose, including to improve the Digital Offering and create other products and services. MHCH will have no obligation to compensate you or provide you with attribution for any such input, suggestions or other feedback.
IX. Disclaimers
MHCH shall use commercially reasonable efforts to provide continuous access to the Digital Offerings pursuant to these Terms. We do not guarantee that the Digital Offerings will be accessible at all times. The Digital Offerings may be unavailable during maintenance periods or during any emergency. In addition to normal maintenance, there may be events that will make the Digital Offering inaccessible for a limited amount of time due to unforeseen circumstances. MHCH reserves the right to change your password if MHCH believes it is not secure. MHCH has the right to refuse access to the Digital Offerings. MHCH has right to cease offering the Digital Offerings at any time and in our sole discretion.
THE DIGITAL OFFERINGS ARE PROVIDED “AS IS” AND “AS AVAILABLE.” ALL WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ALL OTHER SIMILAR WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. IN ADDITION, MHCH MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, ACCURACY, TIMELINESS, QUALITY, SECURITY, SUITABILITY, OR AVAILABILITY OF THE DIGITAL OFFERINGS OR ANY INFORMATION, SERVICES, OR PRODUCTS AVAILABLE OR REQUESTED THROUGH THE USE OF THE DIGITAL OFFERINGS, OR THAT THE DIGITAL OFFERINGS WILL BE UNINTERRUPTED, AVAILABLE OR OPERATIONAL AT ANY PARTICULAR TIME, OR THAT THEY WILL BE ERROR-FREE OR VIRUS-FREE.
X. Limitation of Liability
NOTWITHSTANDING ANY OTHER PROVISIONS OF THESE TERMS TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF THE LEGAL OR EQUITABLE BASIS OF ANY CLAIM, IN NO EVENT SHALL MHCH OR ITS AFFILIATED COMPANIES (OR ANY LICENSOR OR OPERATOR OF THE YACHTS) BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR PAIN AND SUFFERING, BODILY INJURY, EMOTIONAL DISTRESS, OR SIMILAR DAMAGES) ARISING OUT OF OR RELATED TO THESE TERMS OR THE SUBJECT MATTER HEREOF (INCLUDING, BUT NOT LIMITED TO, THOSE RELATING TO ANY ERROR OR OMISSION OF ANY DIGITAL OFFERING OR ANY SERVICES OR PRODUCTS OBTAINABLE THEREFROM, THE UNAVAILABILITY OR INTERRUPTION OF ANY DIGITAL OFFERING OR ANY FEATURES THEREOF, YOUR USE OF ANY DIGITAL OFFERING, THE CONTENT CONTAINED IN ANY DIGITAL OFFERING, OR ANY DELAY OR FAILURE IN PERFORMANCE BEYOND THE CONTROL OF MHCH OR ITS AFFILIATED COMPANIES OR ANY LICENSOR OR OPERATOR OF THE YACHTS), WHETHER OR NOT FORESEEABLE AND EVEN IF MHCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY RELEASE MHCH, ITS AFFILIATED COMPANIES, ANY LICENSOR AND ANY OPERATOR OF THE YACHTS FROM ANY AND ALL SUCH EXCLUDED DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE MAXIMUM AGGREGATE LIABILITY OF MHCH AND ITS AFFILIATED COMPANIES (AND ANY LICENSOR OR OPERATOR OF THE YACHTS) TO YOU (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR BY STATUTE OR OTHERWISE) FOR ANY MATTER RELATED TO THESE TERMS OR THE SUBJECT MATTER HEREOF SHALL NOT IN THE AGGREGATE EXCEED THE TWO HUNDRED FIFTY DOLLARS ($250).
THE LIMITATIONS ON TYPES AND AMOUNTS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MHCH AND YOU. THE DIGITAL OFFERINGS WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. EACH OF THE LIMITATIONS ON TYPES AND AMOUNTS OF DAMAGES IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MHCH THROUGH ANY DIGITAL OFFERING OR OTHERWISE SHALL CREATE ANY WARRANTY, REPRESENTATION, OR GUARANTEE NOT EXPRESSLY STATED IN THESE TERMS.
XI. Indemnification
YOU AGREE TO INDEMNIFY AND HOLD HARMLESS MHCH, ITS AFFILIATED COMPANIES, ANY LICENSOR, ANY OPERATOR OF THE YACHTS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, PARTNERS, SHAREHOLDERS, EMPLOYEES, LICENSORS, CONTRACTORS, AND AGENTS FROM AND AGAINST ALL THIRD PARTY ACTIONS, CAUSES OF ACTION, CLAIMS, DEMANDS, LOSSES, COSTS, DAMAGES, DEFICIENCIES, JUDGMENTS, LIABILITIES, PENALTIES, FINES, ASSESSMENTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEY’S FEES AND COSTS OF LITIGATION) WHICH THEY OR ANY OF THEM SUFFER OR INCUR RESULTING FROM, BY REASON OF, ARISING OUT OF OR IN CONNECTION WITH: (I) PERSONAL INJURY, BODILY INJURY, INCLUDING FATAL INJURY TO, OR LOSS OF OR DAMAGE TO THE PROPERTY OF, ANY PERSON OR ENTITY WHATSOEVER, (II) ANY BREACH BY YOU OF ANY REPRESENTATION, WARRANTY, AGREEMENT, OBLIGATION, OR COVENANT MADE BY YOU, (III) YOUR USE OF ANY DIGITAL OFFERING (INCLUDING ANY MISUSE, UNAUTHORIZED USE, OR NEGLIGENT USE THEREOF), (IV) YOUR VIOLATION OF ANY THIRD-PARTY RIGHT (INCLUDING, BUT NOT LIMITED TO, ANY INTELLECTUAL PROPERTY RIGHT, RIGHT OF PUBLICITY, OR RIGHT OF PRIVACY), OR (V) ANY DISPUTE BETWEEN YOU AND ANY THIRD PARTY. MHCH MAY PARTICIPATE, AT ITS OWN EXPENSE, IN THE DEFENSE OF ANY SUCH CLAIM, LITIGATION, OR OTHER PROCEEDING AND SHALL HAVE THE RIGHT TO RETAIN ITS OWN COUNSEL. YOU SHALL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF MHCH, EFFECT ANY SETTLEMENT OR COMPROMISE OF ANY PENDING OR THREATENED CLAIM, LITIGATION, OR OTHER PROCEEDING IN RESPECT OF WHICH MHCH OR ANY OTHER LISTED INDEMNITEE COULD HAVE BEEN A PARTY AND INDEMNITY COULD HAVE BEEN SOUGHT UNDER THESE TERMS. MHCH RESERVES the right, at MHCH’S own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with MHCH’S defense of those claims.
XII. Disputes and Limitations on Time to File Claims
If any claim, cause of action, controversy, proceeding, or other dispute arises relating to these Terms, any Digital Offering, or MHCH (a “Dispute”), you agree to first give notice to MHCH and engage in good faith negotiations to attempt to resolve any such Dispute for at least 14 days, except that you or MHCH may skip this informal negotiation procedure for any Dispute enforcing, protecting, or concerning the validity of intellectual property rights.
ANY DISPUTE YOU MAY HAVE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION FOR SUCH DISPUTE ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
XIII. Arbitration
This Section titled “Arbitration” sets forth the terms of an arbitration agreement between you and MHCH.
ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. YOU AGREE THAT NEITHER YOU NOR MHCH WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY, AND EACH PARTY HEREBY WAIVES ANY RIGHT TO ASSERT CONSOLIDATED CLAIMS WITH RESPECT TO ANY DISPUTES SUBJECT TO ARBITRATION UNDER THESE TERMS OR ANY DISPUTES BETWEEN THE PARTIES. NO ARBITRATION OR PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS. ALSO, YOU AGREE THAT YOU ARE PRECLUDED FROM PARTICIPATING IN OR RECOVERING RELIEF UNDER ANY CURRENT OR FUTURE CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTION BROUGHT AGAINST MHCH BY SOMEONE ELSE.
Agreement to Binding Arbitration
You and MHCH agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Digital Offerings at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and MHCH, and not in a court of law.
You acknowledge and agree that you and MHCH are each waiving the right to a trial by jury. However, you and MHCH each retain the right to bring an individual action 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, breach of confidentiality, or other breach of these Terms for which equitable relief may be available.
Rules & Governing Law
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at https://adr.org/Mediation or by calling the AAA at 1-800-778-7879. Unless both you and MHCH otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of California.
Process
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules, which must also include a detailed description of the party’s claim against the other party, the amount of damages sought to be recovered, and a copy of these Terms. (The AAA provides a form Demand for Arbitration – Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). The parties agree that one (1) arbitrator shall arbitrate the dispute. The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute 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.
Location and Procedure
Unless you and MHCH agree otherwise, the arbitration will be conducted in Miami, Florida. If either party’s claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and MHCH submit to the Arbitrator, unless either party requests a hearing, or the Arbitrator determines that a hearing is necessary. If a party’s claim exceeds $10,000, the 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 you and MHCH, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision
The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator will have no authority to award consequential, punitive, or other damages to the extent prohibited by these Terms and will have no authority to award other monetary relief not measured by the prevailing party’s actual damages and each party irrevocably waives any claim thereto. The award may include equitable relief. The Arbitrator will not make any ruling, finding, or award that does not otherwise conform to the Terms. The arbitrator may render a summary disposition relative to all or some of the issues, provided that the responding party has had an adequate opportunity to respond to any such application for such disposition. Only declaratory or injunctive relief may be awarded by the Arbitrator in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. If you prevail in arbitration you will be entitled to an award of reasonable attorneys’ fees and expenses, to the extent provided under applicable law. The parties agree to treat all aspects of the arbitration as confidential, as provided in the AAA Rules. Before making any disclosure permitted by the rules, a party shall give written notice to the other party and afford such party a reasonable opportunity to protect its interests.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Changes
Notwithstanding the aforementioned provisions of this Section titled “Arbitration” regarding consent to be bound by amendments to these Terms, if MHCH materially changes the terms of this Section titled “Arbitration” after the date you first agreed to the Terms, you may reject any such change by providing MHCH written notice of such rejection within 30 days of the date such change became effective. This written notice must be provided either (a) by mail addressed to MHCH at 960 Alton Road, Miami Beach, FL 33149, Attn: General Counsel, or (b) by email from the email address associated with your Account to legal.notices@fsymh.com. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and MHCH in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Terms (or agreed to any subsequent changes to the Terms).
Severability and Survival
If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, then: (i) the unenforceable or unlawful provision shall be severed from these Terms; (ii) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and, (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
XIV. Other Provisions
Choice of Law
These Terms, your use of Digital Offerings, and any dispute you may have with MHCH related to these Terms or the shall be governed by and construed in accordance with the internal laws (and not the law of conflicts) of the State of Florida, except as may be otherwise provided in the above Arbitration Agreement. Where permitted under this Section titled “Arbitration”, you agree to irrevocably submit in any legal proceeding relating to these Terms to a court of competent jurisdiction sitting in Miami, Florida. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in the Section titled “Arbitration” or to any arbitrable disputes as defined therein. Instead, as described in the Section titled “Arbitration”, the Federal Arbitration Act shall apply to any such disputes.
General
These Terms, including, but not limited to, the Privacy Policy (and updates to these Terms and the Privacy Policy), and any other terms agreed to in writing by the parties or by way of your use of any Digital Offering shall constitute the entire and exclusive understanding and agreement between you and MHCH regarding this subject matter, and shall supersede any and all prior or contemporaneous representations or understandings relating to this subject matter. The headings of sections and paragraphs in these Terms are for convenience only and shall not affect its interpretation. You may not assign, transfer or convey these Terms, in whole or in part, or your Account without our prior written approval. MHCH may assign, transfer, or convey these Terms, in whole or in part, without your consent. Any purported assignment, transference, or conveyance in violation of this section shall be of no power or effect. No joint venture, partnership, employment, or agency relationship exists between you, MHCH or any third-party provider as a result of these Terms or your use of the Digital Offerings. If any provision of these Terms are held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. MHCH’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. This provision shall not affect the “Severability and Survivability” section of the Arbitration Agreement of these Terms. Applicable provisions of these Terms will continue in effect after termination or expiration of your Account or these Terms to the extent necessary, including those for billing adjustments and your payment obligations, indemnification, intellectual property ownership, limitations of liability, and dispute resolution. MHCH’s rights under these Terms shall survive any termination of these Terms.
Communications
By creating an Account or giving MHCH any contact information, you agree to receive mail and electronic communications (email, text/SMS and by telephone) from MHCH in addition to any postings of communications by MHCH on the Digital Offerings (e.g., by posting notices on your Account profile page), concerning information and/or MHCH’s Digital Offerings (collectively, “Communications”). For Account holders, Communications may be those that MHCH is required to send to you by law concerning MHCH, your Account or information, or the Digital Offerings (“Required Communications”). The Communications may also be those that MHCH sends to you for other reasons. You may change the email or mobile phone number on file for your account by visiting your Account profile page or by contacting MHCH. You may opt out of receiving all Communications, other than Required Communications, via email by sending a notice to MHCH at legal.notices@fsymh.com that identifies your full name, user name and email address; however, you will not receive any further electronic notices from MHCH (other than Required Communications), which notices may include important notices or announcements. For additional information, please review the MHCH Privacy Policy.
DMCA Notice
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us the following information in writing to MHCH’s Copyright Agent (see 17 U.S.C. § 512(c)(3) for further detail). Please be advised that to be effective, the notice must include ALL of the following:
a physical or electronic signature of the person authorized to act on behalf of the owner of an exclusive copyright that is allegedly infringed;
a description of the copyrighted work that you claim has been infringed;
a description of where the material that you claim is infringing is located on the website (or other Digital Offering);
your address, telephone number, and email address and all other information reasonably sufficient to permit us to contact you;
a 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
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 behalf of the owner of an exclusive right that is allegedly infringed.
Notices of claimed copyright infringement should be directed to:
By mail:
Marc-Henry Cruise Holdings LTD
960 Alton Road
Miami Beach, FL 33149
Attn: General Counsel
Or by electronic mail at:
Email: legal.notices@fsymh.com
Notice to California Residents
In addition to your ability to contact MHCH regarding any complaint regarding the Digital Offerings or to obtain further information regarding use of the Digital Offerings, if you are a California resident, under California Civil Code Section 1789.3, you may also contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Digital Offerings or to receive further information regarding use of the Digital Offerings.
