Last Updated: April 24, 2012
We may, in our sole discretion, modify this Agreement with or without notice to you. The “Last Updated” date at the top of this Agreement will indicate when the latest modifications were made. By continuing to access and use the Services after this Agreement has been modified, you are agreeing to such modifications. Therefore, you should review this Agreement prior to each use of the Services. In addition, when using particular services or features the Services, you shall be subject to any posted guidelines or policies applicable to such services that may be posted from time to time. All such guidelines or policies are hereby incorporated by reference into this Agreement.
If you are under the age of eighteen (18), you represent that you are either an emancipated minor, or have obtained the legal consent of your parent or legal guardian to enter into this Agreement, use the Services, and fulfill the obligations set forth in this Agreement.
3. Copyright; Trademarks
You acknowledge that all materials on the Services, including the Services’ design, graphics, text, sounds, pictures, software and other files and the selection and arrangement thereof (collectively, “Materials”), are the property of Servco or its licensors, and are subject to and protected by United States and international copyright and other intellectual property laws and rights. You will not obtain any ownership interest in the Materials or the Services through this Agreement or otherwise. All rights to Materials not expressly granted in this Agreement are reserved to their respective copyright owners. Except as expressly authorized by this Agreement or on the Services, you may not copy, reproduce, distribute, republish, download, perform, display, post, transmit, exploit, create derivative works or otherwise use any of the Materials in any form or by any means, without the prior written authorization of Servco or the respective copyright owner. Servco authorizes you to view and download the Materials only for personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices contained in the original Materials. You may not modify or adapt the Materials in any way or otherwise use them for any public or commercial purposes. Servco and the Servco logo are registered trademarks of Servco Pacific Inc. All other Servco trademarks, service marks, domain names, logos, company names and indicia of origin (collectively, “Marks”) referred to on the Sites are either trademarks, service marks, domain names, logos, company names or indicia of origin or are otherwise the sole property of Servco or its affiliates or its licensors and may not be copied, imitated or otherwise used, in whole or in part, without the prior written authorization of Servco and/or licensors. In addition, all page headers, custom graphics, button icons and scripts are Marks of Servco and may not be copied, imitated or otherwise used, in whole or in part, without the prior written authorization of Servco will enforce its intellectual property rights to the fullest extent of the law.
4. Links; Third Party Websites
Links on the Services to third party websites and applications are provided only as a convenience to you. If you use these links, you will leave the Services. Your dealings with third parties through links to such third party websites or applications are solely between you and such third parties. You agree that Servco and its Affiliated Parties will not be responsible or liable for any content, goods or services provided on or through these outside websites or applications or for your use or inability to use such websites or applications. You will use these links at your own risk. You are advised that other websites on the Internet, including third party websites linked from the Services, might contain material or information that some people may find offensive or inappropriate; or that is inaccurate, untrue, misleading or deceptive; or that is defamatory, libelous, infringing of others’ rights or otherwise unlawful. Servco expressly disclaims any responsibility for the content, legality, decency or accuracy of any information, and for any products and services, that appear on any third party website or application.
Without limiting the foregoing, your correspondence or business dealings with, participation in promotions of or purchases from, advertisers or third party applications found on or through the use of the Services, including payment for and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser or third party application provider. You agree that Servco and its Affiliated Parties shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or third party application providers on the Services.
Servco is not responsible for any product or service sold on or through the Services or any claims of quality or performance made on or through the Services.
5. Disclaimer; Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES AND THE MATERIALS CONTAINED HEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SERVCO, ITS OTHER AFFILIATED COMPANIES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND OTHER REPRESENTATIVES (COLLECTIVELY, “SERVCO AND ITS AFFILIATED PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SERVCO AND ITS AFFILIATED PARTIES MAKE NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE INFORMATION THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, YOUR MOBILE DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SERVCO AND ITS AFFILIATED PARTIES OR ON OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
ALL SERVICES AND PRODUCTS PURCHASED AND OBTAINED ON OR THROUGH THE SERVICE ARE SUBJECT ONLY TO ANY APPLICABLE WARRANTIES OF THEIR RESPECTIVE MANUFACTURERS, DISTRIBUTORS AND/OR SUPPLIERS, IF ANY. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, SERVCO AND ITS AFFILIATED PARTIES DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTIES, WITH RESPECT TO THE PRODUCTS AND SERVICES (INCLUDING VIRTUAL SERVICES OR THIRD PARTY APPLICATIONS OR SUBSCRIPTIONS) LISTED OR PURCHASED ON OR THROUGH THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE EXPRESSLY DISCLAIM ALL LIABILITY FOR PRODUCT OR SERVICE DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, SERVICE OR PRODUCT MISUSE, SERVICE OR PRODUCT ABUSE, SERVICE OR PRODUCT MODIFICATION, IMPROPER SERVICE SELECTION AND NON-COMPLIANCE WITH ANY WRITTEN DIRECTIONS.
SERVCO AND ITS AFFILIATED PARTIES SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING ANY LIABILITY (I) AS A PUBLISHER OF INFORMATION; (II) FOR ANY INCORRECT OR INACCURATE INFORMATION, (III) FOR ANY UNAUTHORIZED ACCESS TO OR DISCLOSURE OF YOUR TRANSMISSIONS OR DATA, (IV) FOR STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES, OR (V) FOR ANY OTHER MATTER RELATING TO THE SERVICES OR ANY THIRD PARTY WEBSITE OR APPLICATION. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF GOOD WILL, LOSS OF USE, LOSS OF DATA, COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR INFORMATION, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF AN INDIVIDUAL ADVISES OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SERVCO AND YOU. THE INFORMATION AND SERVICES OFFERED ON AND THROUGH THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NOTWITHSTANDING THE FOREGOING, THE SOLE AND ENTIRE MAXIMUM LIABILITY OF SERVCO AND AFFILIATED PARTIES FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR INFORMATION OR SERVICE PURCHASED BY YOU FROM SERVCO ON THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID SERVCO ANY AMOUNTS FOR INFORMATION OR SERVICE PRIOR TO THE DATE ON WHICH YOU FIRST ASSERT ANY CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH SERVCO IS TO STOP USING THE SERVICES AND CANCEL YOUR ACCOUNT.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE EXCLUSIONS AND LIABILITY ARE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
You agree to indemnify, defend and hold harmless Servco and its Affiliated Parties against all claims, demands, causes of action, losses, expenses, damages and costs, including any reasonable attorneys’ fees, resulting or arising from or relating to your use of the Services, any activity related to your account by you or any other person, any material that you submit to, transmit through the Services, your breach of this Agreement, or termination of your access to the Services.
7. Service Usage; Termination of Usage
You are required to provide personal information on the Services in order to take advantage of certain features of the Services. If you provide information on the Services, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the Services, and (b) as permitted, maintain and promptly update such information to keep it true, accurate, current and complete. If you provide any information that is false, inaccurate, outdated or incomplete, or Servco has reasonable grounds to suspect that such information is false, inaccurate, outdated or incomplete, Servco has the right to suspend or terminate your account and prohibit any and all current or future use of the Services (or any portion thereof) by you.
You agree to use the Services only for lawful purposes, and that you are responsible for your use of and communications on the Services. You agree not to post on or transmit through the Service any unlawful, infringing, threatening, harassing, defamatory, vulgar, obscene, profane, indecent, offensive, hateful or otherwise objectionable material of any kind, including any material that encourages criminal conduct or conduct that would give rise to civil liability, infringes others’ intellectual property rights or otherwise violates any applicable local, state, national or international law. You agree not to use the Services in any manner that interferes with its normal operation or with any other user’s use and enjoyment of the Services.
You further agree that you will not access the Services by any means except through the interface provided by Servco for access to the Services. Creating or maintaining any link from another website or application to any page or functionality on the Services without the prior written authorization of Servco is prohibited. Running or displaying the Services or any information or material displayed on the Services in frames or through similar means on another website or application without the prior written authorization of Servco is prohibited. Any permitted links to the Services must comply with all applicable laws, rules, and regulations.
Servco makes no representation that Materials contained on the Services or products described or offered on the Services are appropriate or available for use in jurisdictions outside the United States, or that this Agreement complies with the laws of any other country. Visitors who use the Services and reside outside the United States do so on their own initiative and are responsible for compliance with all laws, if and to the extent local laws are applicable. You agree that you will not access the Services from any territory where its contents are illegal, and that you, and not Servco and its Affiliated Parties, are responsible for compliance with applicable local laws.
This Agreement is effective unless and until terminated by either you or Servco. You may terminate this Agreement at any time, provided that you discontinue any further use of the Services. Servco also may terminate or suspend this Agreement, at any time, without notice, and accordingly deny you access to the Services, for any reason, including without limitation, if in Servco’s sole discretion you fail to comply with any term or provision of this Agreement or your use is harmful to the interests of another user or Servco and its Affiliated Parties. Upon any termination of the Agreement by either you or us, you must promptly destroy all materials downloaded or otherwise obtained from the Services, as well as all copies of such materials, whether made under the Agreement or otherwise.
Servco reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. Except as otherwise expressly stated in this Agreement, you agree that Servco and its Affiliated Parties shall not be liable to you or to any third party for any modification, suspension or discontinuation of the Services.
You agree that Servco may terminate or suspend your access to all or part of the Services, without notice, for any conduct that Servco, in its sole discretion, believes is in violation of this Agreement or any applicable law or is harmful to the interests of another user or Servco and its Affiliated Parties.
Sections V-VII and X shall survive any termination of this Agreement.
8. Applicable Law; Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of Hawaii in the United States, without regard to its choice of law provisions. You agree to submit to personal jurisdiction in the State of Hawaii and further agree that any cause of action arising from or relating to the use of this Site or this Agreement shall be brought exclusively in the Federal or State Courts residing in Honolulu, Hawaii TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND SERVCO HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING OR LITIGATION BROUGHT AGAINST THE OTHER WITH RESPECT TO THIS AGREEMENT OR THE SITE. IN ADDITION, NEITHER YOU NOR SERVCO SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER SITE USERS, OR LITIGATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
9. Severability; Interpretation
If any provision of this Agreement shall be deemed unlawful, void, or for any reason unenforceable by a court of competent jurisdiction, the validity and enforceability of any remaining provisions shall not be affected. When used in this Agreement, the term “including” shall be deemed to be followed by the words “without limitation.”
10. Entire Agreement
The failure of Servco and its Affiliated Parties to insist upon strict adherence to any term of this Agreement shall not constitute a waiver of such term and shall not be considered a waiver or limit that party’s right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
You agree that regardless of any statute or law to the contrary, any claim of cause of action arising from or relating to use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose, or will be forever barred. The “Disclaimer; Limitation of Liability” provisions of this Agreement are for the benefit of Servco and its Affiliated Parties as defined herein, and each of these individuals or entities shall have the right to assert and enforce these provisions directly against you on its own behalf.
12. Contact Information
If you have any comments, questions, or complaints regarding this Agreement or the Services, or wish to report any violation of this Agreement, please contact us.
Servco Pacific Capital
101 California Street, Suite 1250
San Francisco, CA 94111
We will address any issue to the best of our abilities as soon as possible.