1. Agreement to Terms
2. Modification of Terms
We may amend these Terms from time to time. If we make material changes to the Terms, we will notify you by posting a prominent notice on the Site and/or sending you an e-mail at your primary email address, as specified in your Account (defined below). Any changes to these Terms will be effective immediately for new users of our Site; otherwise these changes will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you or thirty (30) calendar days following our posting of a notice on our Site. You are responsible at all times for updating your Account to provide to us your most current e-mail address. If the last e-mail address that you have provided to us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Site following notice of such changes shall indicate your acknowledgement of, and agreement to be bound by, such changes.
3. Your Information and Account
For certain uses of the Site, Pono Kai Resort may require you to provide information about yourself (such as identification or contact information) or to create a user account (“Account”). You agree that any such information and any information that you provide in connection with your Account will always be correct, complete and up to date. You will be responsible for all activities that occur under your Account and therefore you agree to keep your password confidential. You agree to notify us immediately of any unauthorized use of your Account or if you believe that your password is no longer confidential. We reserve the right to require you to alter your user name and/or password if we believe that your Account is no longer secure. You will not: (a) provide any false information as part of your Account information or in connection with the Site; (b) create an Account for anyone other than yourself; (c) create or use more than one Account at any given time; (d) transfer your Account to anyone else; (e) permit others to use your Account; or (f) use or access other persons’ Accounts.
4. Note to International Visitors
5. Site Conduct
When using the Site, you agree to comply with the following guidelines:
- you may not post or transmit information, data, text, software, graphics, sound, photographs, video, messages, or other content (collectively, “Content”) that is unlawful, harassing, inaccurate, libelous, defamatory, obscene, fraudulent, harmful, threatening, abusive, hateful, or is otherwise determined to be objectionable by us;
- you may not interfere with other users’ use of the Site;
- you will not post or upload any virus, time bomb, worm, corrupted file, or other software routine capable of disrupting, disabling, harming the operation of, or providing unauthorized access, to the Site;
- you will comply with all of these Terms and any applicable laws or regulations (including any laws regarding the export of data or software to and from the United States or other relevant countries);
- you may not use the Site to advertise or sell products or services to others or engage in activities such as contests, sweepstakes, or pyramid schemes;
- you may not impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- you may not post or transmit Content that you do not have a right to post or transmit under any law or under contractual or fiduciary relationships (such as inside information, confidential information, etc.); and
- you may not use the Site to solicit, collect or store personal data or passwords of other users.
6. Violation of Terms
If you violate any of these Terms or other user guidelines posted on the Site, or if Pono Kai Resort believes that your conduct or Content is offensive or illegal, violates the rights of, harms, or threatens to harm third parties, or may create liability for Pono Kai Resort or third parties, Pono Kai Resort reserves the right (but is not obligated) to investigate and take appropriate legal action in its sole discretion, including removing Content from the Site, notifying the appropriate authorities regarding the source of such Content, barring you from accessing the Site, and terminating your Account.
7. Submission of Content
You grant to Pono Kai Resort a world-wide, royalty-free, perpetual, irrevocable, transferable, non-exclusive and fully sub licensable right and license to use, reproduce, modify, adapt, publish, translate, prepare derivative works of, distribute, perform and display any and all Content (in whole or part) that you post or submit to the Site (“User Content”), and to incorporate the User Content in other works, in any form, media, or technology now known or later developed. You represent and warrant that: (a) you have the right to grant the foregoing license and to post and submit the User Content; and (b) the User Content will not infringe, misappropriate, or violate any third party rights (including any intellectual property rights). You are solely responsible for your User Content. Pono Kai Resort reserves the right in its sole discretion to delete or leave unchanged any Content submitted to or appearing on the Site.
8. Third Party Links and Third Parties on the Site
We may allow third parties to provide certain information displayed on the Site. Any third-party information is not sponsored, endorsed, recommended, or licensed by Pono Kai Resort. You should directly contact the third parties and/or their references for the most accurate information.
Your interaction, correspondence or transactions with, third parties using the Site, including participation in promotions or e-commerce (collectively, “Third Party Interactions”), and any terms, conditions, warranties or representations associated with Third Party Interactions, are solely between you and such third parties. You agree that Pono Kai Resort shall not be responsible or liable for any loss or damage of any sort incurred in connection with your Third Party Interactions or the presence of such third parties on the Site. Pono Kai Resort reserves the right (but is not obligated), to monitor, or take any action Pono Kai Resort deems appropriate regarding, disputes between you and third parties using the Site. To the extent permitted under applicable laws, you hereby release Pono Kai Resort from any and all claims or liability related to: (a) any Content posted on the Site by you or third parties; or (b) the conduct, whether online or offline, of any third party.
You agree to indemnify, defend and hold harmless Pono Kai Resort, its affiliates, governing board, officers, agents, employees, partners, and suppliers from any liability, loss, claim, demand, costs and expenses (including reasonable attorneys’ fees) related to:
- your use of the Site;
- any breach or inaccuracy of any representation or warranty made under these Terms;
- your violation of these Terms;
- your violation of applicable laws or any rights of third parties; or
- your posting of User Content to the Site.
10. Use and Storage of Content on the Site
Pono Kai Resort may establish general practices and limits concerning the use of the Site, including without limitation, the maximum number of days that Ccontent will be available on, or retained by, the Site. Pono Kai Resort, in its sole discretion, reserves the right to change these general practices and limits at any time.
11. Ownership of Content and Intellectual Property Rights
Pono Kai Resort and its licensors own the Site and all Content therein (other than your User Content) (“Site Content”) and all worldwide intellectual property rights relating to the foregoing. Except as expressly authorized by Pono Kai Resort, you may not copy, distribute, sell, lease, perform, display, sublicense, modify or prepare derivative works of the Site or Site Content, in whole or in part. Pono Kai Resort reserves all rights not expressly granted to you under these Terms. Any use of the Site not expressly permitted by these Terms will be deemed a breach of these Terms and may violate copyright, trademark, and other laws.
Pono Kai Resort will treat any feedback or suggestions you provide to it as non-confidential and non-proprietary. You grant Pono Kai Resort the right to use any feedback or suggestions you provide in any manner and for any purpose without any obligation to compensate you.
12. DISCLAIMER OF WARRANTY
NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT PONO KAI RESORT’S WARRANTY TO THE EXTENT SUCH WARRANTY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES OR CONDITIONS. ACCORDINGLY, ONLY THE EXCLUSIONS AND LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK AND THAT THE SITE, SITE CONTENT, AND ALL RELATED SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TECHSOUP GLOBAL EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
IN PARTICULAR, NEITHER PONO KAI RESORT NOR ANY OF ITS SUBSIDIARIES OR AFFILIATES REPRESENTS OR WARRANTS TO YOU THAT: YOUR USE OF THE SITE OR SITE CONTENT WILL MEET YOUR REQUIREMENTS; YOUR USE OF THE SITE OR SITE CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, FREE OF VIRUSES OR OTHER HARMFUL CODE; ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SITE WILL BE ACCURATE OR RELIABLE; OR THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
YOU DOWNLOAD OR OBTAIN MATERIAL FROM THE SITE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PONO KAI RESORT OR THROUGH OR FROM THE SITE OR SITE CONTENT SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
13. LIMITATION OF LIABILITY
NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT PONO KAI RESORT’S LIABILITY FOR LOSSES TO THE EXTENT SUCH LIABILITY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS AND EXCLUSIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
YOU EXPRESSLY AGREE THAT PONO KAI RESORT, ITS AFFLIATES, GOVERNING BOARD, OFFICERS, AGENTS, EMPLOYEES, PARTNERS OR SUPPLIERS SHALL NOT BE LIABLE TO YOU FOR ANY OF THE FOLLOWING:
(A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES IN CONNECTION WITH THE SITE, SITE CONTENT, ANY SERVICES PROVIDED IN CONNECTION WITH THE SITE, OR THESE TERMS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; AND
(B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE IN CONNECTION WITH:
- ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY INFORMATION POSTED ON THE SITE;
- ANY CHANGES WHICH TECHSOUP GLOBAL MAY MAKE TO THE SITE, OR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SITE (OR ANY FEATURES WITHIN THE SITE);
- THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SITE;
- YOUR FAILURE TO PROVIDE PONO KAI RESORT WITH ACCURATE ACCOUNT INFORMATION; YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; OR
- ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD PARTY.
THE LIMITATIONS ON PONO KAI RESORT’S LIABILITY TO YOU IN THE ABOVE PARAGRAPHS SHALL APPLY WHETHER OR NOT PONO KAI RESORT HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
PONO KAI RESORT’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE SITE, SITE CONTENT, ANY SERVICES PROVIDED IN CONNECTION WITH THE SITE, AND THESE TERMS WILL AT ALL TIMES BE LIMITED TO FIFTY U.S. DOLLARS ($50 USD), [EXCEPT THAT, WITH RESPECT TO ANY DONATED GOODS OR SERVICES RECEIVED THROUGH THE SITE, PONO KAI RESORT’S LIABILITY, IN ANY CASE, IS EXPRESSLY LIMITED TO REPLACEMENT OF THE DEFECTIVE GOOD OR REPERFORMANCE OF THE SERVICE, OR AT PONO KAI RESORT’S ELECTION, TO THE REPAYMENT OR CREDITING TO YOU OF AN AMOUNT EQUAL TO THE PRICE OF THE GOODS OR SERVICES.] THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
14. Copyright Infringement Policy
Pono Kai Resort takes claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law (including, in the United States, the Digital Millennium Copyright Act), and we maintain a policy of terminating the Accounts of repeat offenders. If you believe any materials accessible on or from the Site infringe your copyright, you may request removal of those materials (or access thereto) from the Site by submitting written notification to our Copyright Agent.
The written notice must include substantially the following:
- your physical or electronic signature;
- identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Site, a representative list of such works;
- identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material;
- adequate information by which we can contact you (including your name, postal address, telephone number and, if available, e-mail address);
- a statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law;
- a statement that the information in the written notice is accurate; and
- a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Pono Kai Resort’s Copyright Agent can be reached as follows:
- PONO KAI RESORT
- Attn: Legal Department
- 9300 Conroy Windermere Road, Suite 2313
- Windermere, FL 34786
Pono Kai Resort and its logo is the registered trademark of Pono Kai Resort. You must not use any Pono Kai Resort trademarks without the prior written permission of Pono Kai Resort. All third-party trademarks on the Site are the property of their respective owners.
16. Modifications to the Site
Pono Kai Resort reserves the right from time to time to modify the Site, suspend access to all or portions of the Site, or close the Site indefinitely, with or without notice. You agree that Pono Kai Resort will not be liable to you or to any third party for any modification, discontinuance, or suspension of the Site, in whole or in part.
Subject to this Section, this Agreement will remain in full force and effect while you use the Site or maintain an Account. You may terminate your Account at any time and for any reason through the appropriate account management page on the Site. Pono Kai Resort has the right to terminate your Account, immediately effective upon sending notice to you at the e-mail address you provide in your Account. You agree that we will have no liability to you for any costs, expenses, losses, damages, or liabilities arising out of or relating to our termination of your Account, your access to and use of the Site, or this Agreement. Even after this Agreement is terminated for any reason, the following provisions of this Agreement will remain in effect: Sections 7, 8, 9, 12 through 14, 17, 20, and 21.
Without limiting the foregoing, if you use, copy, distribute, sell, display, perform, sublicense or prepare derivative works of any part of the Site in breach of these Terms, your right to use the Site will cease immediately and you must, at Pono Kai Resort’s sole discretion, return or destroy any copies of Site materials you have made.
Pono Kai Resort is located at 9300 Conroy Windermere Road, Suite 2313, Windermere, FL 34786. If you are a Florida resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the Florida Department of Consumer Services by contacting them in writing atP.O. Box 6700, Tallahassee, FL 32399-6700, or by telephone at (800) 435-7352.
19. Electronic Communications
For contractual purposes, you (a) consent to receive communications from Pono Kai Resort in an electronic form (whether Pono Kai Resort posts notices on the Site or communicates with you via email); and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Pono Kai Resort provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights. Any notices to you by Pono Kai Resort may be made by either email or regular mail.
20. General Provisions
These Terms and any Additional Terms constitute the final, complete, and exclusive agreement between you and Pono Kai Resort regarding the Site and supersede all prior or contemporaneous agreements, understandings, and communications, whether written or oral, between you and Pono Kai Resort (including, but not limited to, any prior versions of these Terms).
These Terms and the resolution of any controversy or claim arising out of or related to these Terms or the Site (“Claim”) shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to any principles of conflicts of law. Pono Kai Resort’s failure to insist upon strict enforcement of any provision of these Terms shall not be construed as a waiver of any provision or right. All waivers will be effective only if in writing. If any provision of these Terms is held to be invalid or unenforceable, the remaining provisions of these Terms will be enforced in accordance with their terms. You acknowledge that the Site and Site Content contains valuable trade secrets and proprietary information of Pono Kai Resort, that any actual or threatened breach of the Section entitled “Ownership of Content and Intellectual Property Rights” will constitute immediate, irreparable harm to Pono Kai Resort for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. The section headings in these Terms are for convenience only and have no legal or contractual effect. “Includes” and “including” are not limiting.
Regardless of any statute or law to the contrary, you hereby waive your right to bring any Claim against Pono Kai Resort more than 1 year after such Claim first arose.
All Claims will be settled by binding arbitration in accordance with the Comprehensive Arbitration Rules of JAMS. Any such controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration with any claim or controversy of any other party. You consent to the arbitration being conducted in the English language and in the county of Orange County, Florida. Each party will bear its own costs incurred in such arbitration proceeding. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, Pono Kai Resort may seek injunctive relief in any court having jurisdiction to protect its intellectual property or confidential or proprietary information.