Raising the Tide with Seashell
Welcome, and thank you for visiting Seashell! We’re a financial technology company on a mission to help you build the future of money by making your money spendable and growing at the same time. Our registered company name is Seashell Financial Inc. (“SFI”), and in this agreement, we’ll use “Seashell,” “we,” and “us” to refer to SFI and our website at www.seashell.com
, along with any of our related websites, hosted applications, mobile or other downloadable applications, and other services provided by us (collectively, the “Service”). You agree and understand that by signing up to Seashell and using it to open an account with us, an affiliate, or a custodial or banking partner, you are agreeing to enter into this user agreement (the “User Agreement”) by and between you and SFI, and be legally bound by its terms and conditions, so please read them carefully. If you are not eligible, or do not agree to the User Agreement, then you do not have our permission to use the Service. If any term or condition of this User Agreement is unacceptable to you, please do not visit, access, or use Seashell. Your use of the Service, and Seashell’s provision of the Service to you, constitutes an agreement by Seashell and by you to be bound by the terms and conditions in the User Agreement.
By signing up to Seashell and opening an account, you represent and affirm that to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations (see Applicable Laws and Regulations below); and (d) you have the legal capacity to enter into the User Agreement by and between you and Seashell, and agree to be bound by the terms and conditions in the User Agreement in their entirety. You agree and understand that by logging into your account or authenticating to our application programming interface (“API”) with your API key (“API Authenticating” or “API Authentication”) following any change to the User Agreement, such login or API Authentication, as applicable, shall constitute your agreement to the amended User Agreement by and between you and Seashell, and you agree to be legally bound by its terms and conditions as amended, hence you should read this User Agreement from time to time. Among other things, logging into your account or API Authenticate following an amendment to the User Agreement means that transactions that you or others have already undertaken, and benefits or rebates that you or others may have earned, could be affected by the amended terms and conditions of the User Agreement. You agree and understand that we have the right to require your affirmative asset and continued acceptance of this User Agreement, from time to time, as a condition of you accessing or using any Service. If you do not agree to be bound by the User Agreement, amended or otherwise, you should not access any Service, log in to your account, or API Authenticate. Should you disagree with any provision of the User Agreement, including any changes or amendments, please close your account in accordance with the Account Closure section. We reserve the right to change any of these terms and conditions at any time, but you will always find the latest version of the User Agreement here on this page.
You must first successfully provide the required identification information pursuant to our Bank Secrecy Act (“BSA”) and Anti-Money Laundering (“AML”) Compliance Program (collectively, our “BSA/AML Program”) in order to use Seashell and the Service. Also note that the section on Dispute Resolution contains an arbitration clause and class action waiver. By agreeing to this User Agreement, you agree to resolve all disputes through binding individual arbitration, which means that you waive any right to have the dispute decided by a judge or jury, and you waive any right to participate in collective action, whether that be a class action, class arbitration, or representative action.
Applicable Laws and Regulations
Your conduct on Seashell and its partners, and use of the Service, is subject to the laws, regulations, and rules of any applicable government or regulatory authority (the “Applicable Laws and Regulations”) including, but not limited to: Money Service Business (“MSB” regulations under the Financial Crimes Enforcement Network (FinCEN”); state money transmission laws; laws, regulations, and rules of relevant tax authorities; applicable regulations and guidance set forth by FinCEN; the Bank Secrecy Act of 1970 (“BSA”); the USA PATRIOT Act of 2001 (“Patriot Act”); AML/CFT provisions as mandated by U.S. federal law and any other rules and regulations regarding AML/CFT; issuances from the Office of Foreign Assets Control (“OFAC”); and the Commodity Exchange Act (“CEA”). You unequivocally agree and understand that by signing up to Seashell and opening an account and using Seashell in any capacity, you agree and understand to act in compliance with and be legally bound by the User Agreement and by Applicable Laws and Regulations. The continued use of your account is conditioned on continued adherence at all times to the User Agreement and all Applicable Laws and Regulations.
For the avoidance of doubt, unless you have executed another agreement with us stating otherwise, if you are using the Service to invest, your use of the Service is subject to the additional terms as set forth in certain ancillary agreements that govern your investing and investments through the Service (the “Investment Agreements”). The Investment Agreements are incorporated by this reference into, and made a part of, the terms and conditions of this User Agreement. To the extent that an Investment Agreement conflicts with the User Agreement, the terms contained in that Investment Agreement will control.
Opening an Account
To access most features of the Service, you must register for an account. Only individuals or institutions that have opened an account (“Seashell Account”) and successfully completed our BSA/AML Program are considered Seashell customers (each, a “Seashell Customer”). If you would like to provide access to your Seashell Account to another individual or institution, this individual or institution must register a user account (“User Account”) to your Seashell Account and successfully complete our BSA/AML Program. You agree that you will not allow any persons who have not successfully completed our BSA/AML Program to access or use your Seashell Account. Subject to our BSA/AML Program, a Seashell Account may be opened on behalf of an institution by a beneficial owner and/or designated representative of the said institution. By doing so, you warrant and agree that you are a beneficial owner and/or designated representative of the said institution. You hereby authorize us, or a third-party service provider, to take any measures that we consider necessary to verify and authenticate your identity, confirm the information you submit about your linked bank account, and to take any action we deem necessary based on the results. To the extent that you would like more information on completing our BSA/AML Program, or adding another person to your account, please email firstname.lastname@example.org.
You agree that the information you provide as part of our BSA/AML Program is accurate, complete, and not misleading, and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at email@example.com
You are only permitted to access your Seashell Account using your User Account login credentials and other required forms of authentication. We require multi-factor authentication to keep your User Account safe and secure. As a result, you are required to use at least two forms of authentication when accessing your User Account and performing certain operations in your Seashell Account. Forms of multi-factor authentication in addition to your login credentials may include verification tokens delivered through short message service (“SMS”) or a specified and supported two-factor authentication (“2FA”) application. If you choose to install and use a 2FA application on a device (e.g., phone or tablet) on which the operating system has been tampered with in any way, you do so at your own risk. This includes, but is not limited to, a “rooted” (Android) or “jailbroken” (iOS) device. We reserve the right in our sole discretion to prohibit access from or by any device on which the operating system has been or is suspected of having been modified or tampered with. You agree that we may provide your 2FA data to a third-party service provider in order to help us authenticate you. You agree that your User Account login credentials and any other required forms of authentication, where applicable, have been chosen by you, when applicable. You also agree to keep your User Account login credentials and any other required forms of authentication, including your API keys, confidential and separate from each other, as well as separate from any other information or documents relating to your Seashell Account and your User Account. You agree and understand that your disclosure of login information to third parties may negate our user authentication measures and allow unauthorized access to your account. You agree that we cannot be held liable for unauthorized access or other loss resulting from your disclosure or other transmission, whether intentional or inadvertent, of your login information to third parties.
You agree and understand that you are solely responsible (and you will not hold us responsible) for managing and maintaining the security of your User Account login credentials and any other required forms of authentication, including your API keys. You further agree and understand that, we are not responsible (and you will not hold us responsible) for any unauthorized access to or use of your User Account and/or your Seashell Account.
You agree and understand that you are responsible for monitoring your User Account and Seashell Account. If you notice any unauthorized or suspicious activity in your account, please email firstname.lastname@example.org
and notify us immediately.
You agree and understand that all communication with you will be via email. We will use the email address on record for your User Account as our primary means of communicating with you. You acknowledge and understand that this is the only authorized way to contact us. Third parties may advertise or publish alternative ways to contact us or use other measures to pose as Seashell. We cannot verify the authenticity of any such alternative contacts, and they pose a risk of fraud and other malfeasance, so we strongly recommend you do not attempt to contact us using these methods. You agree that we cannot be held liable for unauthorized access to your account or other loss resulting from such fraud or other malfeasance by third parties. To ensure that you receive all of our communications, you agree to keep your email address up-to-date and immediately notify us if there are any changes. Delivery of any communication to the email address on record is considered valid. If any email communication is returned as undeliverable, we retain the right to block your access to Seashell until you provide and confirm a new and valid email address.
We use commercially reasonable efforts to assure that the information contained in the notices we send you regarding your transaction history is accurate and reliable; however, please understand that errors may sometimes occur, and such errors do not impact the actual means and results of a given transaction. Nothing in your transaction history should be treated as a valuation. Any transaction listed in your transaction history or other communication including, but not limited to, receipts sent to your email on record shall be deemed and treated as authorized and correct, approved, and confirmed by you unless we receive Written Notice (as defined herein) to the contrary within three calendar days from the date the communication was sent. It is important for you to understand that it is your sole responsibility to review your transaction history and any notices. You also understand that for the purposes of review and acknowledgment, you agree to be deemed to have reviewed your transaction history and all notices on at least a monthly basis. If for any reason you are unable to do so, or you do not receive our communications, it is your responsibility to notify us immediately. You understand that every communication sent to your email on record will be deemed to have been acknowledged as correct, approved, and confirmed by you unless we have received Written Notice to the contrary within three calendar days from the date the communication was sent.
We retain the right to make changes or adjustments to your User Account as necessary and appropriate, and in our sole discretion, to comply with any Applicable Laws and Regulations. Please see the ‘Erroneous Orders’ and ‘Erroneous Trades’ sections for more information.
You may close any of your accounts at any time. You agree and understand that closing an account will not affect any rights and obligations incurred prior to the date of account closure. You may be required to either cancel or complete all open orders and, in accordance with the provisions of the User Agreement, provide transfer instructions of where to transfer any funds remaining in your account. You are responsible for any fees, costs, expenses, charges, or obligations (including, but not limited to, attorney and court fees or transfer costs of funds) associated with the closing of your account. In the event that the costs of closing of your account exceed the value in your account, you will be responsible for reimbursing us. You may not close any of your accounts to avoid paying any fees otherwise due or to avoid any examination related to our BSA/AML Program.
You agree and understand that we have the right to immediately (a) suspend your account and all accounts beneficially owned by you; (b) freeze/lock the funds and assets in all such accounts; and (c) suspend your access to Seashell, until a determination has been made, if we suspect, in our sole discretion, you and/or any such accounts to be in violation of: any provision of this User Agreement; any Applicable Laws or Regulations; or our BSA/AML Program. You further agree and understand that we have the right to immediately (a) suspend your account; (b) freeze/lock the funds and assets in all such accounts; and (c) suspend your access to Seashell until a determination has been made, if: (i) we are required to do so by a regulatory authority, court order, facially valid subpoena, or binding order of a government authority; (ii) the account is, or is related to any account that is, subject to any pending litigation, investigation, or governmental proceeding; (iii) the account has a balance that needs to be reconciled for any reason; (iv) your ACH deposit was returned to your bank; (v) we believe someone is attempting to gain unauthorized access to the account; (vi) we believe there is unusual activity in the account; (vii) we believe you are using Seashell, your login credentials, or other account information in an unauthorized or inappropriate manner; or (viii) the account has not been accessed in two years or more.
If your account has been suspended, you will be notified when accessing Seashell. We may, in our sole discretion, give Written Notice that your account has been suspended and may, in our sole discretion, disclose the reasons for suspension, if permitted to do so by law.
You agree and understand that we have the right to immediately investigate your account, if we suspect, in our sole discretion, that you and/or any such account is being used in an unauthorized or inappropriate manner. You further agree and understand that we have the right to immediately investigate your account, if: (a) we are required to do so by a regulatory authority, court order, facially valid subpoena, or binding order of a government authority; (b) the account is, or is related to any account that is, subject to any pending litigation, investigation, or governmental proceeding; or (c) the account has not been accessed in two years or more. We may, in our sole discretion, give Written Notice that your account is the subject of an investigation and may, in our sole discretion, share the general nature of the investigation, if permitted to do so by law. You agree and understand that upon our request and within the time frame designated by us, you and any related party are obligated to respond to any interrogatories in writing and to furnish any documentary materials and other information in connection with any investigation initiated pursuant to this User Agreement. You agree and understand that neither you nor any related party shall impede or delay any investigation or proceeding conducted pursuant to the User Agreement, nor refuse to comply with any request made pursuant to the User Agreement.
Following the conclusion of an investigation, our CCO will make, in his or her sole discretion, a determination based upon the weight of the evidence.
You agree and understand that we have the right to terminate your access to Seashell and any account at any time and for any reason, including for violation of the User Agreement or applicable law, and that if we do so, your rights and obligations under the User Agreement will continue. You further agree and understand that we have the right to take any and all necessary and appropriate actions pursuant to the User Agreement and/or Applicable Laws and Regulations. If your account is terminated, we will return your funds, less the value of any rebates, debts owed to Seashell, offsets, and/or damages that we are entitled to pursuant to the User Agreement. If your account is no longer subject to an investigation, court order, or subpoena, you authorize us to return your funds (less any rebates, debts owed to Seashell, offsets, and/or damages to which we are entitled) to any bank account linked to your account, unless otherwise required by law.
You agree and understand that we, as well as our affiliates, service providers, their respective officers, directors, agents, joint venturers, employees and representatives (collectively, the “Seashell Service Providers”), may comply with any writ of attachment, execution, garnishment, tax levy, restraining order, subpoena, warrant or other legal process, which any of us reasonably and in good faith believe to be valid. We and any Seashell Service Provider may, but are not required to, notify you of such process by electronic communication. We and any Seashell Service Provider may charge you for associated costs, in addition to any legal process fees. You agree to indemnify, defend, and hold all of us harmless from all actions, claims, liabilities, losses, costs, attorney’s fees, or damages associated with our compliance with any process that any of us reasonably believe in good faith to be valid. You further agree that we and any Seashell Service Provider may honor any legal process, regardless of the method or location of service.
If your account remains closed or dormant for a long enough period of time, we may be required, upon the passage of applicable time periods, to report any remaining funds in your account as unclaimed property in accordance with abandoned property and escheat laws. If this occurs, we will use reasonable efforts to give Written Notice. If you fail to respond to any such Written Notice within seven Business Days (as defined herein) or as otherwise required by law, we may be required to deliver any such funds to the applicable jurisdiction as unclaimed property. We reserve the right to deduct an administrative fee resulting from such unclaimed funds, as permitted by Applicable Law and Regulations.
Our BSA/AML Program is guided by the BSA, specifically, the AML and Counter-Terrorist Financing (“CTF”) provisions, as mandated by U.S. federal law, the Patriot Act, and all other rules and regulations regarding AML and CTF. These standards are designed to prevent the use of Seashell for money laundering or terrorist financing activities. Compliance is at the core of our activities, and it is our policy to take all the necessary steps to prohibit fraudulent transactions, report suspicious activities, and actively engage in the prevention of money laundering and any related acts that facilitate money laundering, terrorist financing, or any other financial crimes.
Patriot Act Notification
Please also note that Section 326 of the USA PATRIOT ACT requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. This federal requirement applies to all new users. This information is used to assist the United States government in the fight against the funding of terrorism and money-laundering activities.
What this means to you: when each person opens an account on Seashell, we will ask each person for his or her name, physical address, mailing address, date of birth, and other information that will allow us to identify him or her. In furtherance of our BSA/AML Program, we reserve the right to require you to provide us with additional information and/or require you to undergo a background check prior to being authorized to use Seashell, or at any point thereafter, in accordance with Applicable Laws and Regulations.
Source of Funds
You agree, represent, and warrant that all funds in your account, or funds exchanged or to be exchanged by you in the future on Seashell, are not the direct or indirect proceeds of any criminal or fraudulent activity. You are not allowed to receive funds in your account from a sender other than yourself. Any funds you receive from a sender other than yourself will be considered unauthorized. We reserve the right to investigate the source of any funds in your account and determine, in our sole discretion, how to handle their disposition. Following our review of any funds in question and the circumstances by which you received them, we may determine that you are not the owner of such funds. If such a determination is made, we reserve the right to dispose of these funds in accordance with Applicable Laws and Regulations and in our sole discretion, which may include, returning them to the destination of their origin or to a charity of our choosing.
Pursuant to the economic sanctions programs administered in the countries where we conduct business, including, but not limited to, the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), we are prohibited from providing services or entering into relationships with certain individuals and institutions. In the event that we are required to block funds associated with your account in accordance with a sanctions program, or other similar government sanctions programs, we may: (a) suspend your account; (b) terminate your account; (c) return funds to the destination of their origin or to an account specified by authorities; or (d) require you withdraw funds from your account within a certain period of time. We are not responsible for any losses, whether direct or indirect, that you may incur as a result of our complying with Applicable Law and Regulations, the guidance or direction of any regulatory authority or government agency, or any writ of attachment, lien, levy, subpoena, warrant, or other legal order.
You agree to promptly return to us any assets erroneously distributed to you. In the event that you sell an asset prior to its ex-dividend/distribution date, and you receive the related cash/stock dividend or distribution in error, you direct us, on your behalf, to pay such dividend/distribution to the entitled purchaser of the assets you sold, and you guarantee to promptly reimburse us for, or deliver to us, said dividend or distribution.
Code of Conduct
We strive to make Seashell safe, secure, and compliant. We expect that you treat our employees, including our customer support professionals, as you would like to be treated yourself: with respect. Any use of inappropriate or abusive language towards any of our employees is strictly prohibited. Examples include, but are not limited to, verbal threats, harassment, aggressive comments, or behavior that is disrespectful. This type of behavior is a direct violation of our Code of Conduct and the User Agreement. If you engage in this type of behavior, we will politely ask you to stop. If you continue to engage in this type of behavior, we will terminate your account.
Proprietary Rights and Limitations on Use
Seashell is a proprietary product and is protected by copyright and other intellectual property laws. You agree and understand not to modify, copy, reproduce, retransmit, distribute, sell, publish, broadcast, create derivative works from, or store Seashell source code or similar proprietary or confidential data or other similar information provided via Seashell, without our express prior written consent. You may not use Seashell for any unlawful purpose.
Subject to your complete and ongoing compliance with the User Agreement, Seashell grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service.
Seashell and the Seashell logo (whether registered or unregistered) (the “Seashell Marks”) are proprietary marks licensed to Seashell and protected by applicable trademark laws. Nothing contained in the User Agreement should be construed as granting any license or right to use any of the Seashell Marks displayed here without our express written consent. Any unauthorized use of the Seashell Marks is strictly prohibited. You may not use any of the Seashell Marks in connection with the creation, issuance, sale, offer for sale, trading, distribution, solicitation, marketing, or promotion of any investment products (e.g., Digital Assets, fiat currency, securities, commodities, investment or trading products, derivatives, structured products, investment funds, investment portfolios, commodity pools, swaps, securitizations or synthetic products, etc.), without a separate written agreement with us. We may use technology that is the subject of one or more pending patent applications.
You agree and understand that we may modify part of or all of Seashell and/or our Service without notice.
Downtime and Maintenance
You agree and understand that part of or all of Seashell may be periodically unavailable during scheduled maintenance or unscheduled downtime (collectively, “Downtime”). You agree and understand that Seashell is not liable or responsible to you for any inconvenience or damage to you as a result of Downtime. Following Downtime, when services resume, you understand that market rates may differ significantly from the market rates prior to such Downtime.
Seashell may link to other websites operated by or with content provided by third parties, and such other websites may link to our website. You agree and understand that Seashell has no control over any such other websites or their content and will have no liability arising out of or related to such websites or their content. The existence of any such links does not constitute an endorsement of such websites, their content, or their operators. Seashell is providing these links to you only as a convenience.
Third-Party Service Providers
Tax Advice and Information
You agree and understand that Seashell does not provide legal, tax, or investment advice, and to the extent you deem necessary, you will consult with qualified professionals in your own jurisdiction prior to using Seashell or implementing any financial plan. We will, however, provide you with any necessary information required of you by the Internal Revenue Service or any other applicable governmental agency if you have opened at least one account on Seashell. Please email email@example.com
if you have any questions.
You agree and understand that all investments received through and by Seashell are considered unsolicited, which means that you have not received any investment advice from us or any Seashell Service Provider in connection with any investments you place, and that we do not conduct a suitability review of any investments you place. You also agree and understand that you have not and do not expect to receive any investment advice from us nor any of our affiliates in connection with your investments. In addition, you agree and understand that your review of our blog and/or FAQ does not constitute any solicitation or investment advice.
You agree and understand that all investment decisions are made solely by you. Notwithstanding anything in the User Agreement, you agree and understand that we accept no responsibility whatsoever for, and shall in no circumstances be liable to you in connection with, your decisions. You agree and understand that under no circumstances will the operation of Seashell and your use of Seashell be deemed to create a relationship that includes the provision of or tendering of investment advice.
You agree and understand that by using Seashell and making investments, you have sufficient knowledge to place such investments. You are responsible for making sure that any investments placed by you are accurate and intentional. We may, in some cases, and at our sole discretion, require secondary electronic, verbal, written or other confirmation before acting if your account activity is outside of its normal range of activities. You agree and understand that the information and services provided by Seashell are not provided to, and may not be used by, any individual or institution in any jurisdiction where the provision or use thereof would be contrary to any Applicable Laws and Regulations, the rules or regulations of any governmental authority or regulatory organization, or where Seashell is not authorized to provide such information or services. Seashell may not be available in all jurisdictions.
International Cross-Border Data Transfer
Seashell uses servers hosted in the United States. Please note that we may be transferring your information outside of your region for storage and processing in the United States and around the globe. By using the Services you consent to the transfer of information to countries outside of your country of residence, including the United States, which may have data protection rules that are different from those of your country.
You agree and understand that you are not allowed to enter any restricted area of any computer or network of Seashell or any Seashell Service Provider under any circumstances, or perform any functions that are not authorized by the User Agreement. You should never access Seashell from an unsecured or public computer and/or network.
You agree and understand to be legally bound by the terms and conditions set forth in the User Agreement and that this User Agreement governs your use of Seashell and the services we provide. By clicking “I AGREE,” during the account opening process, you agree and understand to be legally bound by the terms and conditions of the User Agreement and agree and understand that you have received the disclosures set forth herein. If you do not agree to be legally bound by the terms and conditions of the User Agreement, do not click “I AGREE” and please do not visit, access, or use Seashell in any capacity or manner. Whether or not you click “I AGREE,” if you sign up for an account and use Seashell in any capacity or manner, you agree, by virtue of any such action, to be legally bound by the terms and conditions of the User Agreement (including any changes or amendments) in their entirety.
Disclaimer of Warranties
For the avoidance of doubt, neither we nor any Seashell Service Provider are giving investment advice, tax advice, legal advice, or other professional advice by allowing you to use the Service, and the services we or any Seashell Service Provider provide, including, but not limited to, the ability to buy, sell, or store digital assets or fiat currency. Before engaging in any trading or investment activity, you should always consult a qualified professional.
THE SERVICES WE AND SEASHELL SERVICE PROVIDERS PROVIDE ARE PROVIDED TO YOU ON A STRICTLY “AS IS,” “WHERE IS,” AND “WHERE AVAILABLE” BASIS. NEITHER WE NOR ANY SEASHELL SERVICE PROVIDER REPRESENT OR WARRANT TO THE ACCURACY, COMPLETENESS, CURRENTNESS, NON INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF SEASHELL OR THE INFORMATION CONTAINED THEREIN OR SERVICES CONTAINED THEREON. SEASHELL DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO THE SITE OR USE OF THE SERVICES WILL BE CONTINUOUS, UNINTERRUPTED, OR ERROR-FREE.
Disclaimer of Liability
EXCEPT TO THE EXTENT REQUIRED BY LAW, NEITHER WE NOR ANY SEASHELL SERVICE PROVIDER SHALL BE LIABLE TO YOU, WHETHER IN CONTRACT OR TORT, FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SIMILAR DAMAGES, INCLUDING DIMINUTION IN ASSET VALUE, OR LOST BUSINESS OPPORTUNITIES (EVEN IF WE AND/OR ANY SEASHELL SERVICE PROVIDER HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF) IN CONNECTION WITH THIS USER AGREEMENT, YOUR USE OR ATTEMPTED USE OF SEASHELL, OR ANY OF THE INFORMATION, SERVICES OR TRANSACTIONS CONTEMPLATED BY THE USER AGREEMENT. SEASHELL’S TOTAL LIABILITY FOR BREACH OF THIS AGREEMENT SHALL BE LIMITED BY THE VALUE OF ANY OF YOUR ALLEGEDLY LOST INVESTMENT ASSETS IN THE CUSTODY OF SEASHELL SERVICE PROVIDERS AT THE TIME OF LOSS.
YOU AGREE AND UNDERSTAND THAT NEITHER WE NOR ANY SEASHELL SERVICE PROVIDER SHALL BE LIABLE FOR DELAYS OR INTERRUPTIONS IN SERVICE CAUSED BY AUTOMATED OR OTHER COMPLIANCE CHECKS OR FOR OTHER REASONABLE DELAYS OR INTERRUPTIONS IN SERVICE, BY DEFINITION TO INCLUDE ANY DELAY OR INTERRUPTION SHORTER THAN ONE WEEK, OR DELAYS OR INTERRUPTIONS IN SERVICE BEYOND THE CONTROL OF SEASHELL OR ITS SERVICE PROVIDERS.
THIS LIMITATION ON LIABILITY INCLUDES, BUT IS NOT LIMITED TO ANY DAMAGE OR INTERRUPTIONS CAUSED BY ANY COMPUTER VIRUSES, SPYWARE, SCAMWARE, TROJAN HORSES, WORMS, OR OTHER MALWARE THAT MAY AFFECT YOUR COMPUTER OR OTHER EQUIPMENT, OR ANY PHISHING, SPOOFING, DOMAIN TYPOSQUATTING, OR OTHER ATTACKS, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS (E.G., YOU CANNOT ACCESS YOUR INTERNET SERVICE PROVIDER), UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, STRIKES OR OTHER LABOR PROBLEMS, OR ANY FORCE MAJEURE. NEITHER WE NOR ANY SEASHELL SERVICE PROVIDER GUARANTEE CONTINUOUS, UNINTERRUPTED, OR SECURE ACCESS TO SEASHELL. IF THIS DISCLAIMER OF LIABILITY SECTION IS DEEMED TO CONFLICT WITH ANY OTHER SECTION OF THIS USER AGREEMENT, THIS DISCLAIMER OF LIABILITY SECTION SUPERSEDES THE OTHER SECTION.
You agree and understand that in no event shall we or any Seashell Service Provider be liable for any delays, failure in performance or interruption of service which result directly or indirectly from any cause or condition, whether or not foreseeable, beyond our reasonable control, including, but not limited to, any act of God, nuclear or natural disaster, epidemic, action or inaction of civil or military authorities, act of war, terrorism, sabotage, civil disturbance, strike or other labor dispute, accident, state of emergency or interruption, loss, or malfunction of equipment or utility, communications, computer (hardware or software), Internet or network provider services.
In no event shall we or any Seashell Service Provider be liable for any act, omission, error of judgment, or loss suffered by you in connection with the User Agreement or your use or attempted use of the Service. You agree to indemnify and hold us harmless from or against any or all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including reasonable attorneys’ fees), claims, disbursements or actions of any kind and injury (including death) arising out of or relating to your use of the Service, or our and any Seashell Service Providers’ performance or nonperformance of duties to you.
If you are a California resident, you waive California Civil Code Section 1542, which states:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
You agree to indemnify us for actual, reasonable legal costs and expenses directly related to your account or any related account that are a result of any regulatory inquiry, legal action, litigation, dispute, or investigation whether such situations occur or are anticipated, that arise or relate to you or your use of the Service. As a result, we will be entitled to charge your Seashell account for such costs without notice, including legal and enforcement related costs that we incur. Any withholding will last for a period of time that is reasonably necessary to resolve any regulatory or legal issue at hand, and we may place any amounts garnered from you in a separate account, and will pay you the remaining balance after any noted issue has been resolved. Furthermore, you agree that where such anticipated or actual actions relate to a specific asset in your account, that asset may not be transferred out of said account until the matter is resolved. We will provide copies of all invoices on request.
This User Agreement, or your rights and obligations hereunder, may not be transferred by you, but may be assigned by us without restriction. Any attempted transfer or assignment by you in violation hereof shall be null and void. This User Agreement shall be binding and inure to the benefit of the parties hereto, our successors, and permitted assigns.
Relationship of the Parties`
You agree and understand that nothing in this User Agreement shall be deemed to constitute, create, imply, give effect to, or otherwise recognize a partnership, employment, joint venture, or formal business entity of any kind; and the rights and obligations of the parties shall be limited to those expressly set forth herein. Except for the indemnity and exculpation provisions herein, nothing expressed in, mentioned in, or implied from this User Agreement is intended or shall be construed to give any person other than the parties hereto any legal or equitable right, remedy, or claim under or in respect to this User Agreement to enforce any of its terms which might otherwise be interpreted to confer such rights to such persons, and this User Agreement and all representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the exclusive benefit of you and us.
You agree and understand that your obligations and the obligations of each user set forth in this User Agreement are necessary and reasonable in order to protect us and our business. You expressly agree that due to the unique nature of our business, monetary damages would be inadequate to compensate us for any breach by you of your covenants and agreements set forth in this User Agreement. Accordingly, you agree and understand that any such violation or threatened violation shall cause irreparable injury to the us and that, in addition to any other remedies that may be available, in law, in equity or otherwise, we shall be entitled to obtain injunctive relief against any threatened breach of this User Agreement or your continuation of any such breach, without the necessity of proving actual damages.
You agree and understand that if any provision of the User Agreement, or application thereof, shall be determined to be invalid or unenforceable under any rule, law, or regulation or by any governmental agency, local, state, or federal, such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under any applicable law. You further agree and understand that the validity of or enforceability of any other provision (or of such provision, to the extent its application is not invalid or unenforceable) of the User Agreement shall not be affected.
Change of Control
In the event that we are acquired by or merged with a third-party entity, we reserve the right, in any of these circumstances, to transfer or assign the information we have collected from you as part of such merger, acquisition, sale, or other change of control.
You agree and understand that all provisions of the User Agreement, which by their nature extend beyond the termination or expiration of the User Agreement, including, but not limited to, sections pertaining to suspension, investigations, remedies for breach, termination, debts owed, right to offset, unclaimed funds, disputes with us, and general provisions, shall survive the termination or expiration of the User Agreement.
Section headings in this User Agreement are for convenience only, and do not govern the meaning or interpretation of any provision of this User Agreement. Unless the express context otherwise requires: (i) the words “hereof,” “herein,” “hereunder” and words of similar import, when used in this User Agreement, shall refer to this User Agreement as a whole and not to any particular provision of this User Agreement; (ii) the terms defined in the singular have a comparable meaning when used in the plural and vice versa; (iii) wherever the word “include,” “includes” or “including” is used in this User Agreement, it shall be deemed to be followed by the words “without limitation”; (iv) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends and such phrase shall not mean simply “if”; and (v) the word “or” shall not be interpreted to be exclusive.
If we send an email to the email address on record for your User Account, you agree and understand that this constitutes written notice (“Written Notice”) from us to you. If you visit our Help Center, this constitutes Written Notice from you to us. For all notices made by email, the date of receipt is considered to be the date of transmission.
Non-Waiver of Rights
The User Agreement shall not be construed to waive rights that cannot be waived under Applicable Laws and Regulations. In addition, our failure to insist upon your strict compliance with any term or provision of the User Agreement shall not be construed as a waiver for you to not comply with such term or provision.
Your use of Seashell, your rights and obligations under the User Agreement, and all actions contemplated by, arising out of or related to this User Agreement shall be governed by the laws of the State of Washington without regard to its conflicts of laws provisions.
You agree and understand that any controversy, claim, or dispute arising out of or relating to the User Agreement or the breach thereof or the services provided to you by Seashell shall be settled solely and exclusively by binding arbitration held in the county in which you reside, or another mutually agreeable location, including remotely by way of video conference administered by JAMS and conducted in English, rather than in court. You expressly agree that any dispute about the scope of the User Agreement to arbitrate and/or the arbitrability of any particular dispute shall be resolved in arbitration in accordance with this section. You expressly agree that an arbitrator may issue all appropriate declaratory and injunctive relief necessary to ensure the arbitration of disputes (but only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim). You agree to keep any arbitration strictly confidential.
You agree that this arbitration provision applies not just to disputes with Seashell but also to (a) disputes with Seashell and any other party named or added as a co-defendant along with Seashell at any time during a court action, and (b) disputes in which a party is named as a defendant in a court action involving claim(s) arising from or related to the User Agreement or any other Seashell agreement or program terms, even if Seashell is not named or added as a defendant. Any such co-defendant or defendant is a third-party beneficiary entitled to enforce this arbitration provision.
You agree that the arbitrator shall have the authority to order any remedies, legal or equitable, which a party could obtain from a court of competent jurisdiction in an individual case based on the claims asserted, and nothing more. The arbitrator shall not award punitive or exemplary damages to either party, unless such remedies would otherwise be available under applicable law.
The parties agree and acknowledge that this arbitration provision evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. s. 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties to be bound by the provisions of the FAA for all purposes, including, but not limited to, interpretation, implementation, enforcement, and administration of this arbitration provision, and the FAA shall preempt all state laws to the fullest extent permitted by the law.
You agree that any such arbitration shall be conducted in accordance with the then prevailing JAMS Streamlined Arbitration Rules & Procedures (the “Rules”), with the following exceptions to such Rules if in conflict:
The arbitration shall be conducted by one neutral arbitrator;
You agree that service of a demand for arbitration via Written Notice constitutes sufficient written notice of the Demand for Arbitration;Arbitration may proceed in the absence of any party if that party has been given Written Notice of the arbitration, as specified in this Agreement and/or the Rules; andEach side agrees to bear its own attorney’s fees, costs, and expenses, unless such remedies would otherwise be available under applicable law.
You agree to abide by all decisions and awards rendered in such proceedings and you agree that such decisions and awards rendered by the arbitrator shall be final and conclusive, except for any appeal rights under the FAA.
To the extent you seek emergency relief in connection with any controversy, claim, or dispute arising out of or relating to this User Agreement or the breach thereof, or the services provided to you by Seashell, you agree that the “Emergency Relief Procedures” provision of the JAMS Comprehensive Rules, currently Rule 2(c), shall govern. You agree and understand that this User Agreement restricts you from seeking emergency relief from any court, including without limitation temporary restraining orders and/or preliminary injunctions, and you agree that, to the extent either party breaches the User Agreement by seeking such relief from a court, that party shall be responsible for paying the opposing party’s attorneys’ fees in opposing such relief, and the arbitrator shall render an award of such attorneys’ fees at the earliest possible time after such fees are incurred.
Notwithstanding the foregoing obligation to settle disputes through arbitration, you or we may assert claims, if they qualify, in small claims (or an equivalent) court in King County or any United States county where you live. However, if the claims are transferred, removed or appealed to a different court, they shall be subject to arbitration.
You agree that you or we may, without inconsistency with this arbitration provision, apply to any court for an order enforcing the arbitral award. You irrevocably and unconditionally agree to waive any objection that you may now or hereafter have to the laying of venue of any action or proceeding relating to enforcement of the arbitral award in the federal or state courts located in the State of Washington.
You agree that all such controversies, claims, or disputes shall be settled in this manner in lieu of any action at law or equity. In arbitration the parties waive their rights to have a jury trial.
IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE OR FOR ANY OTHER REASON LITIGATION PROCEEDS IN COURT THEN YOU AGREE THAT YOU AND WE:
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS AND REGULATIONS, HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS USER AGREEMENT OR THE SERVICES THAT SEASHELL PROVIDES OR ANY OTHER MATTER INVOLVING US HERETO, AND SUBMIT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE FEDERAL OR STATE COURTS LOCATED IN KING COUNTY, WASHINGTON AND YOU AGREE NOT TO INSTITUTE ANY SUCH ACTION OR PROCEEDING IN ANY OTHER COURT IN ANY OTHER JURISDICTION.
You acknowledge that you have reviewed the User Agreement carefully, and agree that this dispute resolution section of the User Agreement is included and agreed to with the mutual intent to rapidly and inexpensively resolve any disputes with respect to the matters described herein, and that this section shall be grounds for stay or dismissal of any court action commenced by you with respect to a dispute arising out of such matters.