EXPERIENCEWAIKAI.COM TERMS OF USE AGREEMENT

Effective date:

Last modified: 12/7/20

TABLE OF CONTENTS

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1. INTRODUCTION

2. CHILDREN UNDER THE AGE OF 13

3. YOUR ACCEPTANCE OF OUR PRIVACY POLICY

4. YOUR CONSENT TO OTHER AGREEMENTS

5. OWNERSHIP OF THIS WEBSITE AND ITS CONTENT

6. TRADEMARKS

7. YOUR FEEDBACK

8. YOUR OBLIGATIONS AND PROHIBITED USES

9. LINKING TO THE WEBSITE

10. DISCLAIMERS

11. LIMITATION OF LIABILITY

12. LINKS TO THIRD-PARTY WEBSITES

13. MODIFICATION AND DISCONTINUATION OF WEBSITE

14. WAIVER

15. SEVERABILITY

16. GOVERNING LAW, JURISDICTION, AND VENUE

17. INDEMNITY

18. THESE TERMS OF USE AND THE PRIVACY POLICY MAY CHANGE

19. ENTIRE AGREEMENT

1. INTRODUCTION

Thank you for visiting experiencewaikai.com (the “Website”), which is owned by Wai Kai Commercial Development, LLC (“Company”). As used herein, the terms “we,” “our,” and “us” also refer to the Company. This Terms of Use Agreement, including all documents expressly incorporated by reference herein (“Terms of Use”), applies to all users of this Website. Please read these Terms of Use carefully before accessing and using the Website. By using and accessing this Website, you are agreeing to comply with and be bound by these Terms of Use. If you do not wish to agree to these Terms of Use, you must not access or use this Website.

If you have any questions about this Website, these Terms of Use, or our Privacy Policy, or would otherwise like to send us feedback or comments, request technical support, report a violation of these Terms of Use, or other communications relating to the Website, please contact us, subject to these Terms of Use, using the following contact information: info@waikaiexperience.com

2. Children Under the Age of 13

Children under the age of thirteen (13) are not permitted to use or access the Website. By using this Website, you represent and warrant that you are either of legal age to enter into a binding contract with the Company or that you are thirteen (13) years of age or older and your legal guardian consents to these Terms of Use on your behalf.

3. Your Acceptance of Our Privacy Policy

All information we collect as a result of your use of this Website is subject to our Privacy Policy, which is expressly incorporated herein. Please read our PRIVACY POLICY carefully to understand our policies and practices regarding your information, how we will treat your information, and your rights and choices in connection therewith, including INFORMATION WE COLLECT ABOUT YOU AND HOW WE COLLECT IT and YOUR CHOICES ABOUT HOW WE USE AND DISCLOSE YOUR INFORMATION. By using this Website, you agree to our PRIVACY POLICY and you consent to all actions taken by us with respect to your information in compliance with the PRIVACY POLICY.

4. Your Consent to Other Agreements

We may also require you to follow additional rules, guidelines, or other conditions (“Other Agreements”) to sign up to use various special features, receive information and offers from us, participate in certain promotions or activities available through this Website, or for other reasons. In such cases, you may be asked to expressly consent to these additional terms, for example, by checking a box or clicking on a button marked “I agree.” This type of agreement is known as a “click-through” agreement. If any of the terms contained in Other Agreements are different than the terms of these Terms of Use, the terms within the Other Agreements will supplement or amend these Terms of Use, but only with respect to the matters governed by the Other Agreement.

5. Ownership of this Website and its Content

This Website, including all its all of the software and code comprising or used to operate this Website, and all of the text, information, displays, photographs, images, illustrations, graphics, sound recordings, video and audio-video clips, features, functionality, and other materials available on this Website, including the design, selection, and arrangement thereof (collectively, the “Content”) is protected under applicable United States and international intellectual property and other laws, including without limitation copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. All Content and intellectual property rights thereto are the property of Company or its licensors, and all Content is used with the permission of the rights owner thereof. The presence of any Content on this Website does not constitute a waiver of any right in such Content. No right, title, or interest in or to the Website or the Content is transferred to you, and all rights not expressly granted herein are reserved by the Company.

The Content may not be used, copied, reproduced, distributed, republished, downloaded, modified, displayed, posted, adapted, or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without our express prior written permission. Permission is hereby granted only to the extent necessary to lawfully access and use this Website, including your computer’s temporary storage of copies of such materials in RAM incidental to your accessing and viewing those materials. You may also display, download, or print one copy of this Website or portions of this Website on a temporary basis for your personal, educational, non-commercial use only, or for legitimate business purposes related to your role as a legitimate business affiliate of the Company, provided that you do not: (i) modify the Content; (ii) delete, omit, or alter any copyright, trademark, or other proprietary notices contained in the Content; (iii) use any illustrations, photographs, videos, or graphics separately from the accompanying text; or (iv) reproduce, publish, or distribute the Content in any media.

If you wish to use the Content for any purpose not expressly authorized herein, you may send a request for such use to info@waikaiexperience.com , which request may be granted or denied at Company’s sole discretion.

If you print, copy, modify, download, or otherwise use the Content in breach of the Terms of Use, your right to use the Website will stop immediately and you must promptly return or destroy any copies of the Content you have made, whichever we instruct you to do at our sole discretion. Any use of the Content not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws.

6. Trademarks

The Company’s name, the terms WAI KAI, WAI KAI AT HOAKALEI, THE LINEUP, THE LINEUP AT WAI KAI, THE LINEUP SOCIAL HUB, THE WAVE, THE WAVE AT WAI KAI, CITYWAVE, SURF PARK MANAGEMENT, THE LOOKOUT BAR, and THE BOARDWALK CAFÉ AND BAR, all related company, product, and service names, and all related logos, designs, and slogans appearing within this Website, unless otherwise noted, are trademarks (whether registered or not), service marks, and/or trade dress of Company or its subsidiaries, parent companies, affiliates, or licensors, and are the exclusive property of their respective owners. You are not authorized to display or use such trademarks, service marks, and/or trade dress in any way without the prior written permission of such owners. Except as expressly set forth in these Terms of Use, no license or rights thereto are granted to you by virtue of accessing or using the Website. All rights not expressly granted under these Terms of Use are reserved by Company.

7. Your Feedback

Anything you communicate to us, whether on or through the Website, email, mail, or through other means of communication, that is specifically about how we can improve this Website and the services we make available through this Website (“Feedback”) will be and remain our exclusive property. Your submission of Feedback will constitute an assignment to us of all worldwide rights, title, and interests in your Feedback, including all copyrights and other intellectual property rights therein. We will be entitled to reduce to practice, exploit, make, use, copy, disclose, display or perform publicly, distribute, improve, and/or modify any Feedback you submit for any purpose whatsoever, without restriction and without compensating you in any way. For this reason, we ask that you not send us any Feedback that you do not wish to assign to us.

8. Your Obligations and Prohibited Uses

In consideration of and as a condition to your use of this Website, you agree that to the extent you provide information to Company in connection with your use of this Website, the information will be true, accurate, current, and complete and that you will update all information as necessary to ensure that it remains as such. You may not use any aliases or other means to mask your true identity.

You agree to use this Website in accordance with these Terms of Use and with all applicable laws, rules, and regulations. You agree not to: (i) introduce, upload, or transmit through this Website any computer viruses, trojan horses, worms, logic bombs, or any other material that interferes with, interrupts, or disrupt the normal operating procedures of a computer or is otherwise malicious or technologically harmful; (ii) use spiders, robots, data mining techniques or other automated devices, programs, or means to access the Website for any purpose, including without limitation to monitor, catalog, download, or otherwise reproduce, store, or distribute Content available on the Website; (iii) resell use of, or access to, the Website to any third party; (iv) do anything that could disable, overburden, damage, or impair the Website or interfere with any other party’s use of the Website; (v) attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website; (vi) attack the Website via a denial-of-service attack or a distributed denial-of-service attack; and/or (vii) do anything else that interferes with the proper working of the Website.

Additionally, you agree not to use or attempt to use the Website:

  • To collect personal information, cyberstalk, or harass another Website user.

  • For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.

  • To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.

  • To impersonate or attempt to impersonate Company or its employees, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).

  • To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm the Company or users of the Website, or expose them to liability.

In the event of your actual or suspected violation of the Terms of Use herein, Company may, at its sole discretion: (i) immediately suspend or terminate your right to use the Website; (ii) take appropriate legal action, including without limitation referral to law enforcement, for any illegal or unauthorized use of the Website; (iii) disclose information about you, including your identity and other personal information, to law enforcement authorities. We expressly reserve all rights and remedies available to us.

9. Linking to the Website

You may send to others or post a link to our Website homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it. You must not use a link to our Website in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent. Additionally, you must not use a link to our Website in a way that causes the Website or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking. You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice.

10. DISCLAIMERS

Wai Kai is a commercial development project that is still under construction. The construction schedule and anticipated completion date reflected on the Website are estimates and are subject to change. Wai Kai and all drawings, mock-ups, renderings, descriptions, and depictions of Wai Kai on the Website are subject to change.

WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE WEBSITE OR ITS CONTENT, OR ANY PRODUCT OR SERVICE AVAILABLE ON OR PROMOTED THROUGH THIS SITE. THIS SITE AND ALL OF ITS CONTENT ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, AND THEIR SERVICE PROVIDERS AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING BY STATUTE, CUSTOM, COURSE OF DEALING, COURSE OF PERFORMANCE, OR IN ANY OTHER WAY, WITH RESPECT TO THIS WEBSITE, ITS CONTENT, AND ANY PRODUCTS OR SERVICES AVAILABLE OR PROMOTED THROUGH THIS SITE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY, ITS PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, AND THEIR SERVICE PROVIDERS AND LICENSORS EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES (A) OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) RELATING TO THE SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THIS WEBSITE; (C) THAT THE CONTENT OF THIS WEBSITE IS ACCURATE, COMPLETE, OR CURRENT; (D) THAT THIS WEBSITE WILL OPERATE SECURELY OR WITHOUT INTERRUPTION OR ERROR; (E) THAT DEFECTS WILL BE CORRECTED; (F) AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY, OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS, OR OTHER DATA; AND (G) THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

ADDITIONALLY, AND WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND THAT WE CANNOT AND DO NOT GUARANTEE, REPRESENT, OR WARRANT THAT THIS WEBSITE, ITS SERVERS, OR ANY TRANSMISSIONS SENT FROM US OR THROUGH THIS SITE WILL BE FREE OF ANY HARMFUL COMPONENTS (INCLUDING VIRUSES). YOU ARE RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKPOINTS TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR ANTI-VIRUS PROTECTION AND ACCURACY OF DATA INPUT AND OUTPUT, AND FOR MAINTAINING A MEANS EXTERNAL TO OUR WEBSITE FOR ANY RECONSTRUCTION OF ANY LOST DATA.

YOU ACCEPT THAT OUR SHAREHOLDERS, OWNERS, MANAGERS, MEMBERS, CONTRACTORS, OFFICERS, DIRECTORS, EMPLOYEES AND OTHER REPRESENTATIVES SHALL HAVE THE BENEFIT OF THIS CLAUSE.

Applicable law may not allow the limitation of certain warranties, so all or part of this disclaimer of warranties may not apply to you.

11. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS WE, ON BEHALF OF OUR DIRECTORS, OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS, CONTRACTORS, AND SERVICE PROVIDERS, EXCLUDE AND DISCLAIM LIABILITY FOR ANY LOSSES, DAMAGES, AND EXPENSES OF WHATEVER NATURE AND HOWSOEVER ARISING INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, GENERAL, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES; LOSS OF USE; LOSS OF DATA; LOSS CAUSED BY A VIRUS; LOSS OF INCOME OR PROFIT; LOSS OF OR DAMAGE TO PROPERTY OR PROPRIETARY MATERIAL; LOSS OF GOODWILL, CLAIMS OF THIRD PARTIES; OR OTHER LOSSES OF ANY KIND OR CHARACTER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS WEBSITE, INABILITY TO USE THIS WEBSITE, OR THE USE OF ANY WEBSITES LINKED TO THIS WEBSITE, WHETHER THE ALLEGED LIABILITY IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE. YOU ASSUME TOTAL RESPONSIBILITY FOR ESTABLISHING SUCH PROCEDURES FOR DATA BACK UP AND VIRUS CHECKING AS YOU CONSIDER NECESSARY.

IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF THE COMPANY (AND ITS PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, AND THEIR OFFICERS, DIRECTORS, CONTRACTORS, AGENTS, MEMBERS, MANAGERS, PARTNERS, LICENSORS, SUCCESSORS, ASSIGNS, AND EMPLOYEES) TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR THE CONDUCT OUT OF WHICH THE LIABILITY AROSE.

This Website gives you specific legal rights and you may also have other rights which vary from country to country. Some jurisdictions do not allow certain kinds of limitations or exclusions of liability, so the limitations and exclusions set out in these Terms of Use may not apply to you. Other jurisdictions allow limitations and exclusions subject to certain conditions. In such a case the limitations and exclusions set out in these Terms of Use shall apply to the fullest extent permitted by the laws of such applicable jurisdictions. Your statutory rights as a consumer, if any, are not affected by these provisions, and we do not seek to exclude or limit liability for fraudulent misrepresentation.

12. Links to Third-Party Websites

This Website may provide links to other websites operated by third parties, including without limitation sponsored links and links contained in advertisements. We do not endorse and are not responsible or liable for any content, advertising, services, products, or other materials on or available from such websites. We have no control over third-party websites and we are not responsible for those websites or their availability. Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, advertising, services, products, or other materials on or available from such websites. If you decide to access any of the third-party websites linked by this Website, you do so entirely at your own risk. These Terms of Use do not apply to your use of third-party websites; your use of such websites is subject to the terms and policies of the owner of such websites.

13. Modification and Discontinuation of Website

We reserve the right at any time and from time-to-time to modify, edit, delete, suspend, or discontinue, temporarily or permanently, this Website (or any portion thereof) and/or the Content, information, materials, products, and/or services available through this Website (or any part thereof) at our sole discretion, with or without notice. You agree that we will not be liable to you or to any third party for any such modification, editing, deletion, suspension, or discontinuance of this Website. Additionally, although we may update this Website from time to time, the Content is not necessarily complete or up-to-date. Any Content or information on the Website may be out of date at any given time, and we are under no obligation to update such material.

14. Waiver

Our failure at any time to require performance of any provision of these Terms of Use or to exercise any right provided for herein will not be deemed a waiver of such provision or such right. All waivers must be in writing. Unless the written waiver contains an express statement to the contrary, no waiver by Company of any breach of any provision of these Terms of Use or of any right provided for herein will be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under these Terms of Use.

15. Severability

If any provision of these Terms of Use is held by a court of competent jurisdiction to be unenforceable or contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these Terms of Use will remain in full force and effect.

16. Governing Law, Jurisdiction, and Venue

Our Website is provided from the United States. The laws of other countries may differ regarding the access and use of the Website. We make no representations regarding the legality of this Website in any other country and it is your responsibility to ensure that your use complies with all applicable laws outside of the United States.

All matters relating to the Website, these Terms of Use, and the Privacy Policy, and any dispute or claim arising therefrom or related thereto, will be governed by and construed in accordance with the laws of the State of Hawaiʻi without regard to its conflicts of law provisions.

YOU HEREBY WAIVE ALL RIGHTS TO TRIAL IN ANY ACTION OR PROCEEDING INSTITUTED IN CONNECTION WITH THE SITE, THESE TERMS OF USE, OR THE PRIVACY POLICY. ANY DISPUTES ARISING OUT OF OR RELATING TO THE WEBSITE, THESE TERMS OF USE, AND THE PRIVACY POLICY SHALL BE SETTLED BY ARBITRATION BEFORE A SINGLE ARBITRATOR OF DISPUTE PREVENTION & RESOLUTION (“DPR”), PURSUANT TO DPR’S COMMERCIAL RULES OF ARBITRATION, IN HONOLULU, HAWAIʻI. THE DECISION OF THE ARBITRATOR SHALL BE BINDING AND ENTITLED TO BE ENTERED AS A FINAL JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION. ANY SUCH CONTROVERSY OR CLAIM SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND SHALL NOT BE CONSOLIDATED IN ANY ARBITRATION WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY.

FOR ANY MATTERS WHICH ARE NOT SUBJECT TO ARBITRATION AS SET FORTH IN THESE TERMS OF USE AND/OR IN CONNECTION WITH THE ENTERING OF ANY JUDGMENT ON AN ARBITRATION AWARD IN CONNECTION WITH A CLAIM OR CONTROVERSY HEREUNDER, YOU HEREBY EXPRESSLY CONSENT TO EXCLUSIVE JURISDICTION AND VENUE IN THE COURTS LOCATED IN HONOLULU, HAWAIʻI.

ANY CLAIMS ASSERTED BY YOU IN CONNECTION WITH THE SITE MUST BE ASSERTED IN WRITING TO US WITHIN ONE (1) YEAR OF THE DATE SUCH CLAIM FIRST AROSE, OR SUCH CLAIM IS FOREVER WAIVED BY YOU. EACH CLAIM SHALL BE ADJUDICATED INDIVIDUALLY, AND YOU AGREE NOT TO COMBINE YOUR CLAIM WITH THE CLAIM OF ANY THIRD PARTY.

17. Indemnity

You agree to defend, indemnify, and hold harmless Company, its subsidiaries, parent companies, affiliates, licensors, and service providers, and their respective officers, directors, contractors, agents, members, managers, partners, licensors, successors, assigns, and employees from and against any loss, liability, claim, damage, judgment, award, cost, expense, fees, or demand, including reasonable attorneys’ fees, arising out of: your use of the Website, your violation or breach of these Terms of Use, and/or a violation of the rights of another or any other applicable laws. We reserve the right to defend any such claim at our sole discretion, and you agree to provide us with such reasonable cooperation and information as we may request.

YOU ADDITIONALLY AGREE TO HOLD THE COMPANY AND ITS SUBSIDIARIES, PARENT COMPANIES, AFFILIATES, LICENSORS, AND SERVICE PROVIDERS HARMLESS FROM AND WAIVE ANY CLAIMS AGAINST THE FOREGOING PARTIES RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY ANY SUCH PARTY OR LAW ENFORCEMENT AUTHORITIES.

18. These Terms of Use and the Privacy Policy May Change

We reserve the right to update or modify these Terms of Use and the Privacy Policy at any time, at our sole discretion and without prior notice, by posting the revised versions to the designated pages on the Website for the Terms of Use and Privacy Policy. Any such changes will be effective immediately once we post the revised version on this Website, and you may access the current version of these Terms of Use and Privacy Policy at any time by clicking on the links marked “Terms of Use” and “Privacy Policy,” respectively, at the bottom of each page of this Website.

Your continued use of this Website after we have posted the revised Terms of Use and Privacy Policy constitutes your agreement to be bound by the revised Terms of Use and Privacy Policy. You are responsible for periodically visiting our Website, this page, and the Privacy Policy so you are aware of any changes, as such changes will be binding upon you. We will update the “effective date” at the top of this page and on the Privacy Policy page to reflect the date of the most recent revisions.

19. Entire Agreement

These Terms of Use (together with our Privacy Policy and any applicable Other Agreements) contain the entire understanding and the sole agreement between you and Company with respect to this Website and supersede all previous and contemporaneous communications, negotiations, and agreements, whether oral, written, or electronic, between you and Company with respect to this Website and your use of this Website.