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terms-of-use-agreement

OLELO TERMS OF SERVICE

Last Updated: February 29, 2020

These Terms of Service (“Terms”) apply to your access to and use of the websites, mobile applications and other online products and services (collectively, the “Services”) provided by Olelo Community Media (“Olelo” or “we”). 

PLEASE READ THESE TERMS CAREFULLY, INCLUDING THE MANDATORY ARBITRATION PROVISION IN SECTION 14, WHICH REQUIRES THAT DISPUTES BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS, NOT A CLASS-WIDE OR CONSOLIDATED BASIS. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN SECTION 14. 

BY ACCESSING OR USING OUR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS IN THEIR ENTIRETY, DO NOT USE OUR SERVICES.

If you have any questions about these Terms or our Services, please contact us at olelocm@olelo.org or 808-834-0007. For information about how we collect, use, share and otherwise process information about you, please see our Privacy Policy [https://olelo.org/privacy-policy/].

  1. Eligibility

You must be at least 13 years of age to access or use our Services. If you are under 18 years of age (or the age of legal majority where you live), you may only access or use our Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms.  If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in connection with our Services. If you are under 18 years of age (or the age of legal majority where you live), you may use our Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in relation to our Services. If you use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us. Some of our services, such as use of Olelo’s equipment, services and facilities, may only be available to residents of O’ahu and may be subject to separate terms or agreements. 

  1. User Accounts and Account Security

You may need to register for an account to access some or all of our Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.

  1. User Content
  1. Our Services may allow you and other users to create, post, store and share content, including messages, text, photos, videos, and other materials (collectively, “User Content”). User Content may include programs developed through use of the Olelo equipment, services and facilities (“Resources”) as governed by the Client Services Agreement. Except for the license you grant below, you retain all rights in and to your User Content, as between you and Olelo.
  1. You grant Olelo a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. When you post or otherwise share User Content on or through our Services, you understand that your User Content and any associated information (such as your username or avatar) may be visible to others.
  1. You may not create, post, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of such content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason with or without notice.
  1. Prohibited Conduct and Content
  1. You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not:
  • Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
  • Use or attempt to use another user’s account without authorization from that user and Olelo;
  • Impersonate or post on behalf or any person or entity or otherwise misrepresent your affiliation with a person or entity;
  • Sell, resell or commercially use our Services;
  • Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors; 
  • Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services; 
  • Use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
  • Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
  • Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services; 
  • Develop or use any applications that interact with our Services without our prior written consent;
  • Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
  • Bypass or ignore instructions contained in our robots.txt file; or
  • Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
  1. Where posting User Content is permitted by Olelo, you may post or otherwise share only User Content that is nonconfidential and that you have all necessary rights to disclose. You may not create, post, store or share any User Content that:
  • Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
  • Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
  • May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
  • Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
  • Impersonates, or misrepresents your affiliation with, any person or entity;
  • Contains any unsolicited promotions, political campaigning, advertising or solicitations;
  • Contains any private or personal information of a third party without such third party’s consent;
  • Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
  • In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose Olelo or others to any harm or liability of any type.
  1. Enforcement of this Section 4 is solely at Olelo’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances.  In addition, this Section 4 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.
  1. Ownership; Limited License

The Services, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Olelo or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for noncommercial use. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.

  1. Trademarks

Olelo Community Media and our logos, our product or service names, our slogans and the look and feel of the Services are trademarks of Olelo and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us. 

  1. Feedback

You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Olelo or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback in Olelo’s sole discretion. You understand that Olelo may treat Feedback as nonconfidential. 

  1. Third-Party Content

We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. Olelo does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.

  1. Indemnification

To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Olelo and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “Olelo Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to, use of, or conduct in connection with the Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); (e) your access to, use of, or conduct in connection with the Resources. You agree to promptly notify Olelo Parties of any third-party Claims, cooperate with Olelo Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including attorneys’ fees). You also agree that the Olelo Parties will have control of the defense or settlement, at Olelo’s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Olelo or the other Olelo Parties.

  1. Disclaimers

Your use of our Services is at your sole risk. Except as otherwise provided in a writing by us, our Services and any content therein are provided “as is” and “as available” without warranties of any kind, either express or implied, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Olelo does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While Olelo attempts to make your use of our Services and any content therein safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services.

  1. Limitation of Liability
  1. To the fullest extent permitted by applicable law, Olelo and the other Olelo Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if Olelo or the other Olelo Parties have been advised of the possibility of such damages.
  1. The total liability of Olelo and the other Olelo Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the amount paid by you, if any, to access or use our Services.
  1. The limitations set forth in this Section 11 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Olelo or the other Olelo Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
  1. Release

To the fullest extent permitted by applicable law, you release Olelo and the other Olelo Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

  1. Transfer and Processing Data

In order for us to provide our Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.

  1. Dispute Resolution; Binding Arbitration

Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Olelo and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration provision. In addition, arbitration precludes you from suing in court or having a jury trial. 

  1. No Representative Actions. You and Olelo agree that any dispute arising out of or related to these Terms or our Services is personal to you and Olelo and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
  2. Arbitration of Disputes. Except for small claims disputes in which you or Olelo seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Olelo seeks injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, you and Olelo waive your rights to a jury trial and to have any other dispute arising out of or related to these Terms or our Services, including claims related to privacy and data security, (collectively, “Disputes”) resolved in court. Instead, for any Dispute that you have against Olelo you agree to first contact Olelo and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Olelo by email at olelocm@olelo.org or by certified mail addressed to Olelo Community Media at 1122 Mapuapua St., Honolulu, HI 96819. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the Dispute; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Olelo cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either party may submit the Dispute to binding arbitration administered by the America Arbitration Association (“AAA”) or, under the limited circumstances set forth above, in court. All Disputes submitted to the AAA will be resolved through confidential, binding arbitration. Arbitration proceedings will be held in County of Honolulu, Hawaii unless you are a consumer, in which case you may elect to hold the arbitration in your county of residence. For purposes of this Section 14, a “consumer” means a person using the Services for personal, family or household purposes.  You and Olelo agree that Disputes will be held in accordance with the Commercial Arbitration Rules of the America Arbitration Association (“AAA Rules”), and where appropriate the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at www.adr.org and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the AAA Rules and AAA Consumer Rules or waive your opportunity to read the AAA Rules and AAA Consumer Rules and waive any claim that the AAA Rules and AAA Consumer Rules are unfair or should not apply for any reason. 
  3. You and Olelo agree that these Terms affect interstate commerce and that the enforceability of this Section 14 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the AAA Rules and AAA Consumer Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. 
  4. The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute.  The arbitrator, Olelo, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including information gathered, prepared and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.  
  5. You and Olelo agree that for any arbitration you initiate, you will pay the filing fee (up to a maximum of $250 if you are a consumer), and Olelo will pay the remaining AAA fees and costs. For any arbitration initiated by Olelo, Olelo will pay all AAA fees and costs. You and Olelo agree that the state or federal courts of the State of Hawaii and the United States sitting in the County of Honolulu, Hawaii have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. 
  6. Any Dispute must be filed within one year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and Olelo will not have the right to assert the claim. 
  7. You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 14 by [email: olelocm@olelo.org]. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 15.
  8. If any portion of this Section 14 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 14 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 14; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 14 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 14 will be enforceable. 
  1. Governing Law and Venue

Any dispute arising from these Terms and your use of the Services will be governed by and construed and enforced in accordance with the laws of Hawaii, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of Hawaii or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of Hawaii and the United States, respectively, sitting in the County of Honolulu, Hawaii.

  1. Modifying and Terminating our Services

We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services.

  1. Additional Terms and Amendments
  1. We may supply different or additional terms in relation to some of our Services, and those different or additional terms become part of your agreement with us if you use those Services. If there is a conflict between these Terms and the additional terms, the additional terms will control for that conflict.
  1. We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.
  1. Severability

If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.

  1. Miscellaneous

The failure of Olelo to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements and understandings of the parties. The section titles in these Terms are for convenience only and have no legal or contractual effect.  Use of the word “including” will be interpreted to mean “including without limitation.” Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically.