Effective September 1, 2022
This is a binding agreement. If you use the Service, or click accept or agree to these Terms if presented to you in a user interface for the Service, we will understand this as your acceptance of these Terms and your agreement to all of its terms and conditions. By accepting these Terms or using the Service, you represent and warrant that you have the legal capacity to enter a contract in the jurisdiction where you reside. If you do not agree to all of these Terms, you are not authorized to use the Service and you must promptly cease using it.
By agreeing to these Terms, you expressly agree to the arbitration of all Disputes as further described below. Any controversy, allegation, or claim that arises out of or relates to the Service, these Terms or any additional terms, whether heretofore or hereafter arising (collectively, a “Dispute”), except for any controversy, allegation or claim that arises out of or relates to our actual or alleged intellectual property rights (an “Excluded Dispute”), shall be finally resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and that these Terms do not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitrator or arbitral panel may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of the arbitration provisions will remain in force.
Your Access to the Service
- Internet Access. When using the Service on your mobile, laptop, desktop, or other device (“Device”), you acknowledge and agree that you are responsible for (i) maintaining Internet access for your Device and (ii) any Internet connection and telecommunications fees and charges that you incur.
- Your Device. HHG is not responsible for the operation of your Device. You are responsible for ensuring the system functions of your Device are in working order when accessing the Service, including, but not limited to screen display operation features of your Device.
- No Guarantee. Access to the Service may be suspended temporarily and without notice (i) in the event of system failure, (ii) for maintenance or repair, (iii) where we reasonably suspect there has been a breach of these Terms, (iv) for reasons reasonably beyond our control, or (v) as otherwise explained in these Terms.
Permitted Use and Restrictions
- License Grant. Subject to the terms and conditions of these Terms, HHG hereby grants you a limited, non-exclusive, personal, non-transferrable, non-sublicensable, non-assignable license to access and use the Service (including updates and upgrades that replace or supplement it in any respect and which are not distributed with a separate license, and any documentation) solely for your personal use on a Device that you own or control. We reserve all other rights, which are not granted in these Terms.
- Use Restrictions. You may not access or use the Service in any way that is not expressly permitted by these Terms. You may not: (i) cause, permit, or authorize the modification, copy, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of the Service; (ii) sell, assign, rent, lease, or grant rights in the Service, including, without limitation, through sublicense, to any other person or entity; or (iii) use the Service for any unlawful, prohibited, abnormal, or unusual activity as determined by HHG in its sole discretion.
- Eligibility. You may only use the Service if you are 16 years of age or older. To register for an account, purchase products via the Service, or subscribe to receive any content or other marketing or promotional material from us through the Service (in any form and via any media) you must be an individual at least 18 years of age.
- Investigations. We may, but are not obligated to, monitor, or review the Service at any time. If we become aware of any possible violations by you of these Terms, we reserve the right to investigate such violations, and we may, at our sole discretion immediately terminate your license to use the Service pursuant to Section 18 (Termination) below.
- Violation of these Terms. You must not use (or permit a third party to use) the Service: (i) in any unlawful manner, for any unlawful purpose, or to act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into any Site or any operating system used by the Sites; (ii) in a way that could damage, disable, overburden, impair or compromise our systems or security, or interfere with other users; (iii) to collect or harvest any information or data from the Sites or our systems or attempt to decipher any transmissions to or from the servers running the Sites; (iv) via use of a robot, spider, or other automated device to monitor or copy any Site or any information provided by the Service; (v) to send, knowingly receive, upload, download, use, or re-use any material which does not comply with these Terms; or (vi) to transmit, or procure the sending of, any unsolicited or unauthorized advertising or promotional material or any other form of similar solicitation (spam). You acknowledge and agree that you are solely responsible, and HHG has no responsibility or liability to you or any other person or entity for, any breach by you of these Terms or for the consequences of any such breach.
Accounts, Fees, and Security
- Account. You may register for an account on the maunaloa.com Site and/or hawaiianhost.com Site by completing the registration process. If you register for an account you agree to complete the registration process by providing us with current, complete, and accurate information as requested by any forms. Registration is not available on the hawaiianhostgroup.com Site.
- Fees. You agree to pay all applicable fees and taxes incurred by you or anyone using your account. YOU ACKNOWLEDGE YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
- Account Security. Maintaining account security is very important. You are solely responsible for maintaining the confidentiality of your account password. You agree to notify HHG immediately if you become aware of any unauthorized use of your password or of your account.
- Account Sharing or Transfers. Accounts are registered to you personally and may not be sold, traded, gifted, or otherwise transferred at any time under any circumstances. You may not share your account with, or disclose your password to, anyone else.
- Cancellation by You. If you wish to cancel your account, please contact us at the details in Section 24 (Contact Information). If you voluntarily terminate your account, your account will be deleted, but you may be able to register for an account again at any time by completing the registration process for maunaloa.com Site and/or hawaiianhost.com Site.
- Cancellation by Us. HHG may terminate your account at any time for any reason or no reason, including if: (i) HHG determines that you are (A) in breach of or otherwise acting inconsistently with these Terms or (B) engaging in in fraudulent or illegal activities or other conduct that may result in liability to HHG; (ii) HHG determines it is required by law to terminate your account; or (iii) HHG decides to stop providing the Service or critical portions of the Service. When terminating your account, HHG may delete your account and the information in it. You have no ownership rights to your account.
Terms of Sale and Payments
- Payment Method. If you choose to purchase products, you will be required to provide a current, valid, accepted method of payment (“Payment Method”). You may choose to have your Payment Method saved for easier subsequent checkouts.
- Payment. If you choose, at your sole discretion, to purchase goods from us, you agree that we may charge your credit card, or other chosen Payment Method, and you understand that all payments must be in U.S. dollars. HHG uses authorized third parties for the purpose of processing your transactions, credit card authorization, order fulfillment, and shipping. By submitting Payment Method details to us or our third-party processors, you grant (or otherwise authorize) HHG the right to store and process your information with such third parties. You agree that HHG will not be responsible for any failures of such third parties to adequately protect your information.
- Product Availability. We cannot guarantee the availability of a particular product at any particular time, and we reserve the right to change and/or cancel our merchandise offerings through the Service, without notice, at any time. All prices displayed through the Service are quoted in U.S. dollars and are exclusive of taxes, foreign exchange fees, and delivery charges.
- Personal Use. Unless you are an authorized retailer, all products sold by or received from HHG are intended to be used for personal purposes only, and you may not sell or resell any products you purchase or otherwise received from HHG. HHG reserves the right, with or without notice, to cancel or reduce the quantity of any order to be filled or products to be provided to you that may result in a violation of these Terms, as determined by HHG in its sole discretion.
- Product Returns. We do not accept returns for any item, however, if there is an issue with your order, please let us know by contacting us at the contact details in Section 24 (Contact Information).
Discounts and Promotions
- From time to time, HHG may, in its sole discretion, run online discounts and promotions on products purchased through the Sites (a “Promotion”). Promotions are subject to both these Terms and any additional Promotion-specific terms (“Specific Promotion Terms”) which are incorporated into these Terms by reference. You should ensure that you read the Specific Promotion Terms that apply to each Promotion.
- Promotions are redeemable on online purchases through the Sites only.
- Promotions cannot be applied to previous purchases nor combined with any other Promotions, discounts, coupons, or offers including, without limitation, any loyalty program(s), unless otherwise expressly indicated by HHG. Only one Promotion may be applied per order. Promotions may not be applied to gift cards, taxes, or shipping and delivery fees, unless otherwise expressly indicated by HHG. Promotions are not valid for cash, cash equivalent, or credit.
- Promotions are only available for a limited time. Please see the Promotion period in the Specific Promotion Terms.
- Promotions are subject to product availability and product quantities may be limited. HHG cannot guarantee the availability of any product at any time.
- HHG reserves the right, without notice, to cancel or reduce the quantity of any order to be filled and/or any products or services to be provided to you that we believe, in our sole discretion, involved or may result in the violation of these Terms, any applicable Specific Promotion Terms, or the law.
- We further reserve the right to cancel or modify any Promotion or Specific Promotion Terms at any time without notice and in our sole discretion.
- If you have questions concerning any Promotion or Specific Promotion Terms, please contact us at the contact details below in Section 24 (Contact Information).
- Users concerned with food allergies need to be aware of these risks and should confirm all food allergies and intolerances before preparing or consuming any items. HHG is not responsible for identifying ingredients that may cause allergic reactions for those with food allergies. If you think you are having an adverse reaction to any food items, stop immediately. To the extent you believe you are having a medical or health emergency, call your health care professional, or 911, immediately.
Mobile Messaging Terms and Conditions
- By agreeing to these Terms or using the Service, you also agree to receive communications from us, including via email, text message (to the extent permitted by applicable law), calls, and push notifications. Communications from us may include responses to your inquiries, operational communications concerning your account, or marketing materials.
- If you wish to opt-out of promotional emails, you can unsubscribe from our promotional email list by following the unsubscribe options in the promotional email itself or contacting us at the contact details in Section 24 (Contact Information).
- User Opt-In. The Program allows users to receive SMS/MMS mobile messages by affirmatively opting-into the Program, such as through online enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program and you acknowledge and agree that your information may be shared with third-party service providers who help us administer the Program. By participating in the Program, you agree to receive auto-dialed or prerecorded marketing mobile messages at the phone number associated with your opt-in. While you consent to receive messages sent using an auto-dialer, the foregoing shall not be interpreted to suggest or imply that any or all of our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “auto-dialer”). Message and data rates may apply.
- User Opt-Out. If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP to any mobile message from HHG to opt out of the Program. You may receive an additional mobile message confirming your decision to opt-out. You understand and agree that the foregoing option is the only reasonable method of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than the word STOP or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
- Duty to Notify and Indemnify. If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt-Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these Terms. You further agree that, if you discontinue the use of your mobile telephone number without notifying HHG of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by HHG, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and Agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs. YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
- Program Description. Without limiting the scope of the Program, users that opt-in to the Program can expect to receive messages concerning the marketing and sale of products, services, and events.
- Cost and Frequency. Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with HHG.
- MMS Disclosure. The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
- Our Disclaimer of Warranty. The Program is offered on an “as-is” basis and may not be available in all areas at all times and may not continue to work in the event of product, software, or coverage change or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of HHG’s control.
- Participant Requirements. You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your device capabilities for specific text messaging instructions.
- HHG is not the source of, does not verify or endorse, and takes no responsibility for the content of communications or any material submitted or made available through the Service via any function that allows a user to message, post, or share content (the “Submitted Content”). Submitted Content is entirely the responsibility of the person from whom such content originated. You therefore may be exposed to content that is offensive, unlawful, harmful to minors, obscene, indecent, or otherwise objectionable. Submitted Content may be protected by intellectual property rights owned by third parties. You are responsible for the content you choose to communicate and access using the Service. In particular you are responsible for ensuring that you do not submit material that (i) is protected by copyright, contains trade secrets, or otherwise is subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights, have permission from the rightful owner, or are otherwise entitled by law to upload or post the content; (ii) is false or is a misrepresentation; (iii) is offensive, unlawful, harmful to minors, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or that encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise objectionable; or (iv) impersonates another person. HHG may in its sole discretion block, prevent delivery of, or otherwise remove the content of communications as part of its effort to protect the Service or its users, or otherwise enforce these Terms. Further, HHG may in its sole discretion remove such content and terminate your account if you submit any content that is in breach of these Terms.
- HHG does not claim ownership of any of your Submitted Content. With respect to all of your Submitted Content, you grant HHG a perpetual, irrevocable, non-terminable, non-exclusive, transferable, worldwide, royalty-free, sublicensable, and fully paid-up license to use, reproduce, distribute, prepare derivative works of, display, modify, copy and perform the Submitted Content or any part of the Submitted Content in connection with the Service and HHG’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any and all media formats and through any and all media channels. You also hereby grant each user of the Service a non-exclusive license to access your Submitted Content through the Service while the Submitted Content is made available through the Service. You hereby represent, warrant, and covenant that any Submitted Content you provide does not include anything (including, but not limited to, text, images, music, or video) to which you do not have the full right to grant the license specified in this Section 8 (Submitted Content).
- You acknowledge and agree that: (i) by using the Service, you may be exposed to content that you may find offensive or indecent and you do so at your own risk; (ii) you are solely responsible for, and HHG has no responsibility to you or any third party for any Submitted Content that you create, submit, post, or publish on or through the Service; (iii) HHG does not guarantee any confidentiality with respect to your Submitted Content; and (iv) HHG is not responsible for any Submitted Content provided by third parties that you may have access to through your use of the Service and all Submitted Content is the responsibility of the person from whom such Submitted Content originated. You acknowledge and agree that (y) HHG has no control over and is not responsible for the use of Submitted Content by its users, including any user that has downloaded Submitted Content to a personal device; and (z) HHG may not be able to remove Submitted Content that is downloaded onto a user’s Device. HHG does not endorse any Submitted Content or any opinion, recommendation, or advice expressed therein, and expressly disclaims any and all liability in connection with Submitted Content.
- You acknowledge that HHG has the right to pre-screen your Submitted Content but has no obligation to do so. At HHG’s sole discretion, any Submitted Content may be included in the Service in whole or in part in modified form. In addition, HHG and its designees shall have the right, but not the obligation, in their sole discretion, to refuse or remove any Submitted Content that is available via the Service that violates these Terms or is otherwise objectionable including, but not limited to, being unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or violating any party’s intellectual property.
- You acknowledge that your Submitted Content is your sole responsibility. You agree that, under no circumstances, will HHG be liable in any way for any Submitted Content, including, but not limited to, any errors or omissions in any Submitted Content, or any loss or damage of any kind incurred as a result of the use or distribution of any Submitted Content transmitted or otherwise made available via the Service.
- HHG has adopted a policy that provides for the suspension and/or termination of any user who is found to have infringed on the rights of HHG or of a third party, or otherwise violated any intellectual property laws or regulations. HHG’s policy is to investigate any allegations of copyright infringement brought to its attention.
- Take-Down Notice. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want HHG to delete, edit, or disable the material in question, you must provide HHG with all of the following information (as required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (DMCA)) to our designated copyright agent set forth below:
- A physical or electronic signature of the copyright owner or the person authorized to act on behalf of the owner of an exclusive copyright that is allegedly infringed;
- Identification of the copyrighted work (or works) claimed to have been infringed;
- Identification of the material that is claimed to be infringing and information reasonably sufficient to permit HHG to locate the material (providing URLs in the content of an email is the best way to help us locate content quickly);
- Information reasonably sufficient to permit HHG to contact you, including your address, telephone number, and e-mail address at which you may be contacted;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by you, or your agent, or the law;
- A statement made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
See 17 U.S.C 512(c)(3) for further information.
For this notification to be effective, you must provide it to HHG’s Designated Agent by email at firstname.lastname@example.org. You can also mail your DMCA request to:
Attn: HHG’s Designated Agent
Hawaiian Host, Inc. d/b/a Hawaiian Host Group
500 Alakawa Street, Suite 111
Honolulu, Hawaii 96817
Mailing DMCA notices may delay the processing of your request. Only copyright complaints should be sent to the Designated Agent. No other communications will be accepted or responded to.
If you fail to comply with all of the requirements above, your DMCA notice may not be valid and not be acknowledged. Once proper notice is received by the Designated Agent, it is HHG’s policy:
- to remove or disable access to the infringing material;
- to notify the content provider, member, or user that it has removed or disabled access to the material; and
- that repeat offenders will have the infringing material removed from the system and that HHG will terminate such content provider’s, member’s, or user’s access to the service.
- Counter-Notice. If you believe that the material that was removed or to which access has been disabled is either not infringing, or you believe that you have the right to post and use such material from the copyright owner, the copyright owner’s agent, or pursuant to the law, you must send a counter-notice containing the following information to the Designated Agent:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- Your name, address, and telephone number; and
- A statement that you consent to the jurisdiction of federal district court in the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which you may be found and that you will accept service of process from the person who provided the initial notification of alleged infringement.
If a counter-notice is received by the Designated Agent, HHG may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed material or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member, or user, the removed material may be replaced or access to it restored in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at HHG’s discretion.
Intellectual Property Rights
- Trademarks. The Sites and their contents, including all trademarks, service marks, and graphical elements, are our sole property unless otherwise expressly noted and are protected by copyright, trademark, and/or other proprietary rights and laws. The Sites may also contain various third-party names, trademarks, and service marks that are the property of their respective owners. You do not have the right to use any of our trademarks, service marks or logos, and your unauthorized use of any of these may be a violation of federal and state trademark laws.
- Ownership. Except for your Submitted Content, you acknowledge that all intellectual property rights in the Service, whether registered or unregistered, including but not limited to rights in graphics, logos, “look and feel,” trade dress, structure, organization, code, and all content in the Service and compilation thereof, anywhere in the world, belong to us or our licensors and are valuable trade secrets and confidential information of HHG, and are protected by intellectual property laws. Except for your Submitted Content, you acknowledge and agree that HHG, and/or its licensors, owns all right, title and interest in and to the Service, including all intellectual property, industrial property, and proprietary rights recognized anywhere in the world at any time and that the service is protected by U.S. and international copyright laws. Further, you acknowledge that the Service may contain information that HHG has designated as confidential and you agree not to disclose such information without HHG’s prior written consent. Nothing posted on the Service grants a license to any HHG trademarks, copyrights, or other intellectual property rights, whether by implication, estoppel or otherwise. You should assume that everything you see or read on the Service is proprietary information protected by copyright or trademark unless otherwise noted and may not be used except with the written permission of HHG. When accessing the Service, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Service is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property.
- We welcome feedback from our users and appreciate your comments regarding our Service. However, our company policy does not permit us to accept or consider ideas, suggestions, proposals, or materials (“Submissions”) that we have not specifically requested. This policy is intended to help us and our customers avoid future misunderstandings when new products or services developed internally by our employees might be similar or even identical to a customer’s idea.
- The Service may contain links to websites operated by other parties (“Third-Party Sites”). HHG provides these links to Third-Party Sites as a convenience and use of the Third-Party Sites is at your own risk. The Third-Party Sites are not under the control of HHG and HHG is not responsible for the content available on the Third-Party Sites. Such links do not imply HHG’s endorsement of information or material on any Third-Party Site and HHG disclaims all liability with regard to your access to and use of such Third-Party Sites. Your use of Third-Party Sites is governed by their terms and conditions and privacy policies (if any) (“Third-Party Terms”). It is your responsibility to read and comply with Third-Party Terms.
Notice for California Residents Pursuant to Civil Code Section 1789.3
- Under California Civil Code Section 1789.3, California users of an electronic commercial service receive the following consumer rights notice: California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at 800-952-5210.
- You agree to indemnify and hold us and our affiliates, and their respective business partners, licensees, licensors, officers, directors, employees, and agents (the “Indemnified Parties”) harmless from and against any and all claims, demands, losses, damages, liabilities, costs, and expenses (including, without limitation, reasonable attorneys’ fees and costs), arising out of or in connection with: (i) your use of the Service; (ii) your breach or violation of any these Terms; (iii) your violation of the rights of any third party. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, which shall not excuse your indemnity obligations. In such event, you shall provide the Indemnified Parties with such cooperation as is reasonably requested by the Indemnified Parties.
- WE PROVIDE THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE MAKE NO GUARANTEE THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR FREE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. WE HAVE NO OBLIGATION TO CORRECT ANY BUGS, DEFECTS, OR ERRORS IN THE SERVICE OR TO OTHERWISE SUPPORT, DEVELOP OR MAINTAIN THE SERVICE. While we take reasonable precautions to prevent the existence of computer viruses and/or other malicious programs, we accept no liability for them. We also make no promises or guarantees, whether express or implied, that the content included on the Service is accurate, complete or up to date.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXCLUDE ALL CONDITIONS, WARRANTIES, REPRESENTATIONS AND OTHER TERMS, WHICH MAY APPLY TO THE SERVICE (INCLUDING OUR PRODUCTS), WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES WITH RESPECT TO THE SERVICE (INCLUDING OUR PRODUCTS) AND ALL INFORMATION AND CONTENT INCLUDED ON THE SERVICE (INCLUDING OUR PRODUCTS).
- No information or advice obtained through the Service, or affirmation by us, by words or actions, shall constitute a warranty.
- Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
Limitation of Liability
- IN NO EVENT SHALL THE INDEMNIFIED PARTIES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING LOST PROFITS, ANY BREACH OF SECURITY, OR ANY DAMAGE TO YOUR DEVICE, LOST DATA, PERSONAL INJURY, PROPERTY DAMAGE, OR LOSSES ARISING OUT OF YOUR USE OF OR RELIANCE ON THE SERVICE (INCLUDING OUR PRODUCTS) OR YOUR INABILITY TO ACCESS OR USE THE SERVICE (INCLUDING OUR PRODUCTS)) ARISING FROM, RELATING TO, OR IN ANY WAY CONNECTED WITH THE USE OR THE PERFORMANCE OF THE SERVICE (INCLUDING OUR PRODUCTS) OR THESE TERMS, ARISING AND WHETHER FRAMED IN CONTRACT OR TORT, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF HHG, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Your sole remedy for dissatisfaction with the Service, including, without limitation, content or products offered on the Service, is to stop using the Service (including our products). Such limitation shall also apply with respect to damages incurred by reason of services or products received through or advertised in connection with the Service or any links on the Service, as well as by reason of any information or advice received through or advertised in connection with the Service or any links on the Service. Such limitation shall also apply with respect to damages incurred by reason of any content posted by a third party or conduct of a third party on the Service.
- In the event the foregoing exclusion of liability is determined, in whole or in part, to be invalid or unenforceable, then the Indemnified Parties’ liability arising in connection with the Service or under these Terms whether in contract, tort (including negligence) or otherwise, shall not exceed, under any circumstances, the greater of: (i) the total amount paid for goods in the preceding 30 days, or (ii) One Hundred Dollars ($100). You agree that any claim or cause of action arising under these Terms or the performance or non-performance of the Service (including our products) must be brought within one year after such claim or cause of action arises or be forever barred.
- THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, HHG’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON HHG’S CHOICE OF LAW PROVISION SET FORTH BELOW.
- If you are a California resident, you waive California Civil Code Section 1542, which states, in part “a general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release that, if known by him or her would have materially affected his or her settlement with the debtor or released party.”
- We may terminate these Terms, deactivate your account, and/or your permission to use the Service immediately, without prior notice or liability, if (i) you commit any breach of these Terms, (ii) we discontinue the Service, or (iii) we are prevented from providing the Service for any reason.
- Furthermore, we reserve the right to change, edit, suspend, delete, and/or cancel any part of the Service, your account, and/or your access to the Service at any time with or without notice to you: (i) if required by law, or (ii) due to an event beyond our control.
- On termination of these Terms for any reason: (i) all rights granted to you under these Terms will cease immediately, (ii) you must immediately cease all activities authorized by these Terms (including your use of the Service), and (iii) you acknowledge that we may restrict your access to the Service. Sections 10, 12, and 15–22, as well as any other provision that includes a statement that it shall survive termination or expiration, will survive termination or expiration of these Terms.
Communication Between Us
- If you wish to contact us in writing, or if any condition in these Terms require you to give us notice in writing, you can send this to us by email or as otherwise indicated in Section 24 (Contact Information) at the bottom of these Terms. For DMCA notices, please see Section 9 (DMCA Notice).
- If we have to contact you or give you notice in writing, we may do so by email or using any other contact details you provide to us.
- User Concerns. Most user concerns can be resolved quickly and to the user’s satisfaction by contacting us at the contact details in Section 24 (Contact Information).
- Arbitration Procedures. In the event your concern cannot be resolved informally, you and HHG agree that, except as provided in Section 20(e) below, all Disputes (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in these Terms. In the event of a conflict between the terms set forth in this Section (Dispute Resolution) and the JAMS Rules, the terms in this Section will control and prevail.
Except as otherwise set forth in Section 20(e) below, you may seek any remedies available to you under federal, state, or local laws in an arbitration action. As part of the arbitration, both you and HHG will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given, and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in these Terms, (i) you and HHG may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
IN THE CASE OF ARBITRATION AND WHERE PERMITTED BY LAW, YOU ARE AGREEING TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. YOU ARE ENTITLED TO A FAIR HEARING, BUT THE ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. ARBITRATOR DECISIONS ARE ENFORCEABLE AS ANY COURT ORDER AND ARE SUBJECT TO VERY LIMITED REVIEW BY A COURT.
- Location. The arbitration will take place in the County and City of Honolulu, Hawaii, unless the parties agree to video, phone, or internet connection appearances.
- Limitations. You and HHG agree that any arbitration shall be limited to the Claim between HHG and you individually. YOU AND HHG AGREE THAT (i) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (ii) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (iii) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
- Exceptions to Arbitration. You and HHG agree that that the following Claims are not subject to the above provisions concerning binding arbitration: (i) any Excluded Dispute; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
- Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we initiate arbitration for a Claim, we will pay the costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
- Severability. You and HHG agree that if any portion of this Section is found illegal or unenforceable (except any portion of Section 20(e)), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 20(e) is found to be illegal or unenforceable then neither you nor HHG will elect to arbitrate any Claim falling within that portion of Section 20(e) found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County and City of Honolulu, Hawaii, and you and HHG agree to submit to the personal jurisdiction of that court.
Choice of Law
- These Terms and any matter arising out of or relating to these Terms, and any claim, cause of action, controversy, or matter in dispute between you and us, whether sounding in contract, tort, statute, regulation, or otherwise, shall be governed by the internal laws of the State of Hawaii in the United States, consistent with the Federal Arbitration Act, without regard to any choice or conflict of laws principles (whether of the State of Hawaii or any other jurisdiction). The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from these Terms.
Other Important Terms
- Assignment. The rights granted to you under these Terms may not be assigned without HHG’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
- Severability. Except as otherwise provided in Section 20(g), if any part of these Terms is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the Terms shall be given full force and effect.
- Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with these Terms, except as otherwise provided in Section 20(f), the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in any legal action relating to these Terms.
- No Waiver. Our failure to enforce any provision of these Terms shall in no way be construed to be a waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by HHG of any provision, condition, or requirement of these Terms shall not be understood as a waiver of your obligation to comply with the same provision, condition, or requirement at a later time.
- Equitable Remedies. You acknowledge and agree that HHG would be irreparably damaged if the terms of these Terms were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to any breach of these Terms, in addition to such other remedies as we may otherwise have available to us under applicable laws.
- Entire Agreement. These Terms, including the documents referenced in these Terms, constitutes the entire agreement between you and HHG with respect to the Service and supersedes any and all prior agreements between you and HHG relating to the Service.
- Transfer. We may transfer our rights and obligations under these Terms to another organization but this will not affect your rights or our obligations under these Terms.
Changes to These Terms
- We reserve the right, at our sole discretion, to amend these Terms at any time. As applicable, we will notify you of material changes to these Terms when you next access the Service (we may also email you about any material changes to these Terms). We reserve the right at any time and from time-to-time to modify or discontinue, temporarily or permanently, the Service (or any part of it) with or without notice.
- If you have any questions or comments relating to the Service or these Terms, please contact us at the information below.
Hawaiian Host, KOHO, Hawaiian Host Group: email@example.com
Mauna Loa: firstname.lastname@example.org