Effective as of March 29, 2010
The following describes the terms under which The Whaler on Ka’anapali Beach (“The Whaler,” “we,” “our,” or “us”) provides the http://kaanapaliwhaler.com website (the “Whaler Service” or the “Service”) to owners who have registered as members of the Service (“Members”) and to visitors to the http://kaanapaliwhaler.com website.
Copyright Policy – http://kaanapaliwhaler.com/copyrightPolicy
If you register on behalf of any entity other than yourself personally, you represent to The Whaler that you have the authority to bind that entity and that your acceptance of this Agreement will be treated as acceptance by that entity.
Changes and Modifications. The Whaler reserves the right, at its sole discretion, to change, modify, add, or remove portions of this Agreement at any time. Such changes will become effective thirty (30) days after they have been posted to this site or The Whaler has otherwise notified you of the change. Though The Whaler may attempt to notify you when major changes are made to this Agreement, you should periodically review the most recent version of this Agreement, which is always available from a link in the footer of each webpage within the Service. Your continued use of the Service following the posting of changes will mean that you accept and agree to the changes. As long as you comply with this Agreement, The Whaler grants you a limited, revocable, non-exclusive, non-assignable, non-sublicenseable right to access and use the Service as it is intended to be used and in accordance with this Agreement and applicable law. We grant you no other rights, implied or otherwise.
Links To Other Sites. The Service may contain links to other affiliated or independent third-party websites (“Linked Sites”). These Linked Sites are provided solely as a convenience to our Members and visitors. Such Linked Sites are not under The Whaler’s control, and The Whaler is not responsible for – and does not necessarily endorse the content or practices of – such Linked Sites, including any information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites.
2. DESCRIPTION OF SERVICES
General Description. The Whaler Service allows visitors to browse information regarding The Whaler on Ka’anapali Beach, a premier condominium property on Maui, Hawai’i. The Service also allows Members of the Service to post questions, comments, and concerns to an owners-only message board.
3. CONDITIONS OF USE AND PRODUCER CONDUCT
As a condition of use, you agree to the following:
- To publish Content through the Service, you will be required to create a Member account at the http://kaanapaliwhaler.com website. You are solely responsible for maintaining the confidentiality of your account information, including your password, and for any and all activity that occurs under your account. You agree to immediately notify The Whaler of any unauthorized use of your account or password, or any other breach of security.
- You will not copy, transmit, disseminate, publish, or publicly display content made available in any area of the Service which is accessible only to Members (“Private Content”) to any publicly accessible portion of the Service or to any other website or copy, transmit, disseminate, publish, or publicly display the same by any other means.
- The Service allows Members to upload, transmit, publish, and disseminate text and other content (“Member Content”). Any Member Content contained on the Service represents the opinion of that Member only. No content made available through the Service, including Member Content, should be taken as a statement by or from The Whaler, or its subsidiaries, directors, officers, employees, or licensors.
- You are solely responsible for any Member Content which is published or disseminated using your Member account.
- You will not use the Service to harass, threaten, impersonate, or intimidate anyone.
- You will not upload, post, email, transmit, or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable.
- You will not upload, post, email, transmit, or otherwise make available any content that is in violation of copyright law, trademark law, or any other law protecting intellectual property in any jurisdiction, or that violates an individual’s right to publicity or privacy.
- You will not upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," "affiliate links," or any other form of solicitation.
- You will not transmit any worms or viruses or any code of a destructive nature.
- You will not copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Service or any part thereof.
- You will not violate any local laws in your jurisdiction (including but not limited to intellectual property laws).
- You will not use the Service for any illegal or unauthorized purpose. If you are an international Member, you agree to comply with all local laws regarding online conduct and acceptable content.
When you upload or otherwise provide your own original Member Content to or through the Service, you retain ownership of any copyright (and any other rights) you already hold in your Member Content. You also represent and warrant that, with respect to all Member Content that you upload, transmit, publish, and disseminate through the Service, that (a) you have all the rights and licenses necessary to use, reproduce, publish, display publicly, perform publicly, distribute or otherwise exploit such Member Content in connection with the Service, and to grant to The Whaler the licenses set forth in this Agreement; and (b) the Member Content will not infringe or otherwise violate the copyright, trademark, or any other right of any third party.
5. COPYRIGHT POLICY
If you believe that The Whaler, or any Member using the Service, has violated a copyright you claim in your work, please contact us pursuant to the Digital Millennium Copyright Act (“DMCA”) at firstname.lastname@example.org and review our copyright policy, available at http://kaanapaliwhaler.com/copyrightPolicy, for more details on how to properly notify us of a DMCA issue.
6. THE WHALER’S INTELLECTUAL PROPERTY
All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork, content, and computer code (collectively, “Whaler Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel,” and arrangement of such Whaler Content, contained in the Service is owned, controlled, or licensed by or to The Whaler, and is protected by trade dress, copyright, patent, and/or trademark laws, and various other intellectual property and other rights. Your Member Content (as defined above) is owned by you, and is not Whaler Content.
Except as expressly provided in this Agreement or otherwise permitted by law, no Whaler Content may be used, copied, reproduced, modified, republished, uploaded, posted, publicly displayed, publicly performed, publicly performed by means of a digital audio transmission, encoded, translated, transmitted, or distributed in any way to any other computer, server, website, or any other medium for publication or distribution or for any commercial enterprise or purpose, without The Whaler’s express prior written consent.
7. VIOLATION OF THIS AGREEMENT - TERMINATION
You agree that The Whaler may, in its sole discretion and without prior notice, terminate your access to the Service and/or block your future access to the Service if it determines that you have violated this Agreement or other agreements or guidelines which may be associated with your use of the Service. For example, it is the policy of The Whaler to terminate the accounts of owners/members who sell the interest upon which their membership was based (e.g., by selling one’s condominium or timeshare interest). Please note that it is also The Whaler’s policy to terminate the account of Members who repeatedly violate the copyrights of third parties.
If The Whaler does take any legal action against you as a result of your violation of this Agreement, The Whaler will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to The Whaler. You agree that The Whaler will not be liable to you or to any third party for termination of your access to the Service.
Any rights or licenses you grant to The Whaler, or its visitors or Members, during the term of this Agreement – including, but not limited to, the license granted in connection with your publication of Member Content – shall survive termination of this Agreement.
8. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE WHALER AND ITS SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, AND LICENSORS (THE “THE WHALER AFFILIATES”) EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE OR ANY WARRANTY OR CONDITION ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. THE WHALER AND THE WHALER AFFILIATES MAKE NO WARRANTY THAT (a) THE SERVICE WILL MEET YOUR REQUIREMENTS; (b) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (c) MEMBER CONTENT WILL BE HOSTED AND/OR TRANSMITTED WITHOUT INTERRUPTION OR CESSATION; (d) ANY PRODUCTS, SITES, INFORMATION OR OTHER MATERIAL, WHETHER IN TANGIBLE OR INTANGIBLE FORM, PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS OR ANY STANDARD OF QUALITY; AND (e) ANY DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICE OR RELATED SOFTWARE WILL BE CORRECTED.
ANY MATERIAL, INFORMATION, OR DATA DOWNLOADED, VIEWED, SHARED, OR OTHERWISE ACCESSED THROUGH THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULT FROM THE DOWNLOADING, VIEWING, SHARING, OR OTHERWISE ACCESSING OF SUCH MATERIAL. NO ADVICE, REPRESENTATION OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE WHALER OR THROUGH THE HTTP://KAANAPALIWHALER.COM WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
ALL CONTENT MADE AVAILABLE THROUGH THE SERVICE, INCLUDING MEMBER CONTENT, IS SOLELY THE OPINION OF THE PARTY RESPONSIBLE FOR ITS PUBLICATION. NO SUCH CONTENT, INCLUDING MEMBER CONTENT, AND NO STATEMENT MADE BY, ON, OR THROUGH THE SERVICE SHALL BE ATTRIBUTABLE TO THE WHALER OR THE WHALER AFFILIATES.
9. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE WHALER AND THE WHALER AFFILIATES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS INCLUDES, BUT IS NOT LIMITED TO, ANY LOSS OF PROFITS, GOODWILL OR BUSINESS REPUTATION; ANY LOSS OF DATA; ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR ANY OTHER INTANGIBLE LOSSES. THIS ALSO INCLUDES ANY LOSS OR DAMAGES THAT MAY BE INCURRED BY YOU AS A RESULT OF (a) ANY CONTENT MADE AVAILABLE THROUGH THE SERVICE, (b) ANY CHANGES THAT THE WHALER MAY MAKE TO THE SERVICE; (c) ANY PERMANENT OR TEMPORARY CESSATION OF THE SERVICE; (d) THE DELETION OR CORRUPTION OF OR FAILURE TO STORE ANY MEMBER CONTENT MAINTAINED THROUGH THE SERVICE; OR (e) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY ABOVE SHALL APPLY IRRESPECTIVE OF THE THEORY OF LIABILITY, INCLUDING CONTRACT (INCLUDING FUNDAMENTAL BREACH), WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY, EVEN IF WE (OR OUR AFFILIATES) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU SPECIFICALLY ACKNOWLEDGE THAT THE WHALER AND THE WHALER AFFILIATES SHALL NOT BE LIABLE FOR ANY MEMBER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
10. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND, IN SUCH INSTANCES, THE WHALER AND THE WHALER AFFILIATES’ LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
You will indemnify and hold The Whaler and/or The Whaler Affiliates harmless from and against any and all liabilities and costs (including reasonable attorneys’ fees) incurred by The Whaler and/or The Whaler Affiliates in connection with any Member Content which you publish or disseminate using the Service or any claim arising out of your breach of the Agreement – including without limitation, your publication of any Private Content to any publicly accessible portion of the Service or to any other website or your copying, transmission, dissemination, publishing, or publicly displaying the same by any other means. The Whaler reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
12. GENERAL TERMS
Entire Agreement. This Agreement is the whole legal agreement between you and The Whaler. It governs your use of the Service and completely replaces any prior agreements between you and The Whaler with respect to the Service. You may also be subject to additional terms and conditions that may apply when you use or purchase other services from The Whaler and/or its affiliated services.
Governing Law. You agree that all matters relating to your access to or use of the Service, including all disputes, will be governed by the laws of the United States and by the laws of the State of Hawai’i without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the State and Federal courts in Maui County, Hawai’i, and waive any objection to such jurisdiction or venue.
Dispute Resolution. In the event of any controversy or dispute between The Whaler and you arising out of or in connection with your use of the Service, The Whaler will attempt, promptly and in good faith, to resolve the dispute. If The Whaler is unable to resolve any such dispute within a reasonable time, each party to this Agreement agrees that any dispute or controversy arising between any of the parties to this Agreement, or any person or entity in privity therewith, out of the transactions effected and relationships created pursuant to this Agreement and each other agreement created in connection herewith, including any dispute or controversy regarding the formation, terms, or construction of this Agreement, regardless of kind or character, must be resolved through binding arbitration, which may be initiated by any party to this Agreement. In any such proceeding, The Whaler, in its sole discretion, shall choose the arbitrator or arbitration panel. Each party to this Agreement agrees to submit such dispute or controversy to arbitration before the American Arbitration Association in Maui County, Hawai’i, and further agrees to be bound by the determination of an arbitrator or arbitration panel empanelled by the American Arbitration Association to adjudicate the dispute. Judgment on any arbitration award may be entered in any court of competent jurisdiction. Any party to this Agreement may bring an action, including a summary or expedited proceeding, to compel arbitration of any such dispute or controversy in a court of competent jurisdiction and, further, may seek provisional or ancillary remedies, including temporary or injunctive relief in connection with such dispute or controversy in a court of competent jurisdiction, provided that the dispute or controversy is ultimately resolved through binding arbitration conducted in accordance with the terms and conditions of this Agreement. In any proceeding under this section of the Agreement, the non-prevailing party shall bear all costs, including reasonable attorneys’ fees.
Statute Of Limitations. You agree that, regardless of any statute or law to the contrary, any claim you may have under this Agreement must be brought within one (1) year after the cause of action arises, or such claim or cause of action is forever barred. The Whaler may bring claims to enforce this Agreement at any time.
Severability of Terms; Non-waiver of Terms; Assignment. If any portion of the Agreement is held to be invalid or unenforceable, such provision shall be stricken and the remainder of the Agreement enforced as written. If The Whaler does not exercise or enforce any legal right or remedy including those contained in the Agreement or arising under applicable law, this will not be taken to be a formal waiver or relinquishment of our rights. The Whaler may assign or delegate all rights and obligations under the Agreement, fully or partially.