Effective: February 4 th , 2022
We may change, add or remove portions of these Terms at any time, which shall become effective immediately upon posting and will supersede any previous versions. While we will provide you advance notice of any important revisions, we do recommend that you regularly review these Terms. Your continued use of our Services after we make any changes to them constitutes your agreement to those changes. The date these Terms were last modified is set forth at the beginning and end of these Terms.
THESE TERMS INCLUDE AN ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT APPLY TO ALL CLAIMS BROUGHT AGAINST HOKALI. PLEASE READ THEM CAREFULLY; THEY MAY AFFECT YOUR LEGAL RIGHTS.
You may use our Services only if you can form a binding contract with Hokali, and only in compliance with these Terms and all applicable laws. When you create your Hokali account, and subsequently when you use certain features, you must provide us with accurate and complete information, and you agree to update your information to keep it accurate and complete.
These Services are controlled and operated by Hokali from its offices within the United States of America. Hokali makes no representation that materials in the service are appropriate or available for use in other locations, and access to them from territories where their contents are illegal is prohibited. Those who choose to access the Service from other countries do so on their own initiative and are responsible for compliance with applicable local laws. You may not use or export the Materials (as that term is defined below) in violation of U.S. export law or regulation.
As is further explained below, you should be aware that the material that appears on our Services are for informational purposes only. We strive to make the information as accurate as possible, but errors may appear. We are not responsible for, and do not guarantee the performance of, goods and services provided by any of our advertisers or by any third party to whose website we link. The links on all our digital products and Services are designed for convenience only, and do not constitute an endorsement by Hokali of that site or company, or any product, service or other material offered on that site or by that company.
Except as otherwise set forth in these Terms, as between you and Hokali, all intellectual property rights in and to the Services, including without limitation all copyrights, trademarks, images, website design elements, text, graphics, logos, buttons, icons, Materials, other content, the presentation, selection, and arrangement thereof, and all software is the intellectual property of and belongs solely to Hokali. No rights or interest in or to any of the foregoing are transferred or granted to you pursuant to this Agreement, except as follows: Hokali hereby grants you a revocable, non-transferable, non-sublicensable, limited license to access and use the Services, and the Material and Content therein, solely for personal and non-commercial purposes, in the method and manner approved by Hokali from time-to-time subject to these Terms and all other applicable policies, requirements, and agreements from Hokali or its licensors. You are not permitted to transfer, publish, or otherwise make available to any third party any Material (including without limitation Material downloaded or otherwise accessible or received from Hokali) without Hokali’s prior written consent.
You are solely responsible for, and Hokali will have no obligation with respect to, the software and services you use to access the Services and all costs and expenses related thereto, including without limitation any operating systems, web browsers, media players, codecs, internet connections, and other software or hardware. You will not access or use the Services in a way which violates any agreement or terms and conditions between you and any third party.
By accessing, using, or subscribing to any Service, including without limitation Hokali Premium, you affirm that: (a) you are at least 18 years of age (or have reached the age of majority if that is not 18 years of age where you live); or (b) that your parent or guardian has reviewed this Agreement and he or she assents to these Terms on your behalf and takes full responsibility for your compliance with them. You represent and warrant to Hokali that you and/or your parent or guardian are fully able and competent to enter into the terms, conditions, obligations, representations and responsibilities set forth in these Terms, and to abide and comply with these Terms.
As part of the Service, Hokali offers a subscription (“Hokali Premium”) that entitles you to added benefits, such benefits chosen and defined by Hokali and subject to change at any time and in Hokali’s sole discretion. Should you subscribe to Hokali Premium, your subscription, which may start with a free trial, will continue at the specified time-period (currently monthly or annually) and automatically renew unless and until you cancel your subscription, or we terminate it. Unless otherwise stated, all fees are quoted in U.S. Dollars. You must have Internet access and provide us with a current, valid, accepted payment method (as such may be updated from time to time, “Payment Method”) to subscribe to Hokali Premium. We will bill all fees and charges in connection with your username and password to your Payment Method. ALL FEES AND CHARGES ARE NONREFUNDABLE. THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. If there are monthly fees for your subscription, these fees will be billed automatically to your Payment Method at the start of the monthly period and will auto- renew each month until your subscription is terminated. If there are annual fees for your subscription, Hokali will bill at whatever subscription rate is in effect at that time at the start of the annual period, automatically to your Payment Method and will auto-renew each year until your subscription is terminated. You agree to pay all fees incurred in connection with your username and password for Hokali Premium and you must cancel your subscription before it renews for the applicable time period in order to avoid billing of the next time period’s subscription fees to your Payment Method. Fees may vary based on your location and other factors, and Hokali reserves the right to adjust pricing for Hokali Premium or any components thereof in any manner and at any time as we may determine in our sole and absolute discretion. You can cancel your subscription at any time by going to My Account and following the instructions for cancellation or contacting Hokali Support at firstname.lastname@example.org.
Your subscription to Hokali Forecast app or Premium version may start with a free trial. The free trial period of your subscription lasts for the time specified during registration. For combinations with other offers, restrictions may apply. Free trials are for new and certain former subscribers only. Hokali reserves the right, in its absolute discretion, to determine your free trial eligibility. We will begin billing your Payment Method for subscription fees at the end of the free trial period of your subscription and your subscription will automatically renew unless you cancel prior to the end of the free trial period. To view the specific details of your subscription, visit the My Account page. We may authorize your Payment Method through various methods as soon as you register. We will continue to bill your Payment Method on a recurring basis for your subscription fee until you cancel. Should you cancel your subscription before the end of your free trial period, you may forego the remainder of such free trial period.
If you want to cancel your subscription, switch to a different Payment Method or if there is a change in your Payment Method details, or if you believe someone has accessed Hokali Premium using your username and password without your authorization, please contact Hokali immediately at support@Hokali.co.
You agree to pay for all charges and fees incurred on the Apple ID that you are signed-in on your device while using the Hokali iOS application. All fees and charges are nonrefundable and will be charged to the iTunes Store at the time of purchase. Monthly and annual subscriptions automatically renew unless the subscription is turned off through the iTunes Store at least 24 hours before the end of the current subscription period. Subscriptions and auto-renewals may be managed by the user in the iTunes Account Settings after purchase is made. If there are monthly fees for your subscription, these fees will be billed automatically to the credit card designated during the registration process at the start of the monthly period and will auto-renew each month until your subscription is terminated. If there are annual fees for your subscription, these fees will be billed automatically to the credit card designated during the registration process at the start of the annual period and will auto-renew each year until your subscription is terminated.
This Agreement is personal to you, and you may not assign your usage rights to anyone or share your Hokali Account with anyone. Through providing the necessary information, such as email address and password, during the sign-up process, you create an account (“Hokali Account”).
Each Hokali Account that has been entitled to Hokali Premium, either through paying the associated fee or through direct entitlement from Hokali, is limited to access by only one user. All usernames, passwords, and other credentials (“Credentials”) used in connection with the Services shall be the sole property of Hokali, and Hokali may disable access or use of such Credentials at any time in accordance with this Agreement.
You are responsible for the security of your Account and the Credentials and will immediately notify Hokali of any unauthorized access or use thereof. You cannot share your username, password, or other Credentials with anyone, unless otherwise agreed to by Hokali. THE NUMBER OF DEVICES THROUGH WHICH YOU MAY ACCESS YOUR ACCOUNT IS LIMITED AND MAY CHANGE FROM TIME TO TIME AT OUR DISCRETION.
Hokali may, at any time in its sole discretion, discontinue or change: the Services, including without limitation Hokali Premium; any Content, Materials, features, functions, data, information, or software offered or available through the Services or from Hokali; or the availability of the Services, without notice to you. You may cancel your subscription at any time. The text, graphics, images, video, artwork, metadata and other data, design, organization, compilation, look and feel, advertising and all other protectable intellectual property, including but not limited to any copyrights, trademarks, service marks, trade names, trade dress, patent rights, or database rights (the “Content”) accessible on or available through the Services are our property or the property of our advertisers and licensors and are protected by copyright and other intellectual property laws. Unless you have our prior written consent, you may not use, sell, copy, reproduce, create derivative works from, publish, distribute, re-transmit, or otherwise provide access to the Content received through the Services to anyone.
Except as otherwise noted, the information and/or software within and available through Hokali (including, but not limited to, articles, photographs, images, illustrations, audio clips and video clips, and all such material collectively, the “Materials”) are the exclusive property of Hokali or its licensors. All Materials are copyrighted and protected by worldwide copyright laws and treaty provisions. Other than as otherwise described herein, they may not be accessed, copied, reproduced, modified, published, uploaded, downloaded, posted, transmitted, or distributed in any way, without Hokali’s prior written permission.
Except as expressly provided herein, Hokali grants no express or implied rights to you under any patents, copyrights, trademarks, trade names, or trade secret information. If you would like to reproduce or distribute any of the Materials you find on our Services in any manner other than that described in this agreement, please contact us at info@Hokali.com.
As a Hokali account holder you may, or any other account holder at Hokali may, submit content (“User Content”) to the Service, including without limitation videos, photos, and user comments. You understand that Hokali does not guarantee any confidentiality with respect to any User Content you submit.
You shall be solely responsible for your own User Content and the consequences of submitting and publishing your User Content on the Service. You affirm, represent and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish User Content you submit and license such User Content as set forth herein; and you license to Hokali all patent, trademark, trade secret, copyright, or other proprietary rights in and to such User Content for publication on the Service pursuant to these Terms.
For clarity, you retain all intellectual property rights in, and are responsible for, the User Content you create and share. However, by submitting User Content to Hokali, you grant Hokali an irrevocable, worldwide, non-exclusive, royalty-free, perpetual, sublicensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Content in connection with the Service and Hokali’s (and its successors’ and affiliates’) business, including without limitation for promoting, selling, and redistributing part or all of the Service or User Content (and derivative works thereof) in any formats and through any channels. You also hereby grant each user of the Service an irrevocable, non-exclusive, royalty- free, perpetual license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under these Terms. We reserve the right to remove or modify User Content for any reason, including User Content that we believe violates these Terms or other policies. The above licenses granted by you are perpetual and irrevocable.
You further agree that User Content you submit to the Service will not contain third-party copyrighted material, or material that is subject to other third-party proprietary rights, unless you have permission from the rightful owner of the material, or you are otherwise legally entitled to post the material and to grant Hokali all the license rights granted herein.
Hokali does not endorse any User Content submitted to the Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and Hokali expressly disclaims any and all liability in connection with User Content. Hokali does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and Hokali will remove all User Content if properly notified that such User Content infringes on another’s intellectual property rights. Hokali further does not permit User Content that contains any defamatory, libelous, pornographic, defamatory, offensive, or otherwise unlawful or immoral content; hate speech; illegal material; exploits minors; depicts unlawful or violent acts; violates our content guidelines, which we may update at our sole discretion; or depicts animal cruelty or violence towards animals. Hokali reserves the right to remove User Content and any associated Account without prior notice.
We care about the security of our users. While we work to protect the security of your account and related information, Hokali cannot guarantee that unauthorized third parties will not be able to defeat our security measures. Please notify us immediately of any compromise or unauthorized use of your account by emailing email@example.com.
Hokali or its vendors or licensors may provide certain Services (including without limitation contests, giveaways, micro pages, and the Local Photos Service) subject to additional applicable terms and conditions, which will: (a) be posted or accessible on the applicable Service website or application; or (b) be set forth in a separate section of these Terms. These Terms are supplemental to any Service specific terms and conditions provided by Hokali. In the event of a conflict between these Terms and Service specific terms and conditions, the Service specific terms and conditions will control with respect to the applicable Service while these Terms will control with respect to all other Services.
By subscribing to Hokali, you consent to the storage of personal data and payment information required to enable your use of the Services, including storage of this data by third party vendors, service providers, and database systems (collectively, “Third Party Vendors”). You also consent to transfers of personal data and payment information between Hokali’s Third Party Vendors in accordance with the delivery and continuation of the Services. Hokali commits to partner with secure and compliant third-party vendors but does not endorse any Third-Party Vendors and makes no representation or warranty with respect to Third Party Vendors.
You agree to maintain on file with Hokali a valid email address and regularly (and at least daily) monitor such email address for any communication from Hokali.
The marks and any designs associated with any marks on Hokali’s website or otherwise in the Services are trademarks and/or service marks of Hokali or its licensors. As between you and Hokali, Hokali retains all rights, interests, and ownership in and to all such trademarks and service marks, and no rights or interest in or to such trademarks or services marks shall be transferred or provided to you. Any use of trademarks, service marks, product names and company names or logos, including their reproduction, modification, distribution, or republication by you or any third party, without the prior written permission of Hokali, is strictly prohibited. Other trademarks, service marks, trade names and company logos referenced are the property of their respective owners and no right in or to the foregoing shall be transferred to you.
From time to time, we, our advertisers, Suppliers, or other parties may conduct promotions and other activities on, through or in connection with one or more the Services, including, without limitation, contests, and sweepstakes (collectively, “Promotions”). In some case, you may be able to win a prize (“Prize”) as part of a Promotion. Each Promotion will have additional terms and/or rules or eligibility requirements which shall be posted or otherwise made available to you in connection therewith in accordance with applicable law. By participating in any Promotion, you agree to be bound by all such additional terms and rules and eligibility requirements in addition to these Terms.
You agree to defend, indemnify and hold harmless Hokali, its subsidiaries, affiliates, licensors, directors, officers, employees, agents, third-party information providers, customers, users, and independent contractors against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees and expert witness fees) arising out of or related to: your conduct; your use or inability to use the Service; your breach or alleged breach of these Terms or of any representation or warranty contained herein; your unauthorized use of Hokali Content; any User Content you provide or which is otherwise submitted using your Account, including without limitation the use, submission, sale, upload, or provision of any image, logo, photograph, or other User Content which infringes on any third party’s intellectual property right or other right; your violation of, or failure to obtain, any license with a third party with respect to any User Content; your fraud, misrepresentation, negligence, or misconduct; or any other action or omission by you which violates or results in the actual or alleged violation of any third party’s rights.
YOU ASSUME ALL RESPONSIBILITY AND RISK FOR THE USE OF THESE SERVICES. TO THE MAXIMUM EXTEND PERMITTED BY LAW, SERVICES AND ALL CONTENTS, MATERIALS, INFORMATION, USER CONTENT, PHOTOGRAPHS, IMAGES, AND OTHER DATA SOLELY ON AN “AS IS” AND “AS AVAILABLE” BASIS. HOKALI EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, CONTENTS, MATERIALS, USER CONTENT, PHOTOGRAPHS, IMAGES, AND OTHER DATA, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF CORRECTNESS, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS, AND FREEDOM FROM ERRORS, VIRUSES, BUGS, OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THERE MAY BE DELAYS, OMISSIONS, INACCURACIES, OR OTHER PROBLEMS WITH THE MATERIALS AND HOKALI WITH HAVE NO RESPONSIBILITY OR OBLIGATION RELATED THERETO. HOKALI MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICES OR ANY MATERIALS, INFORMATION, CONTENT, OR USER CONTENT WILL BE UNINTERRUPTED, ACCURATE, OR ERROR-FREE.
IN NO EVENT SHALL HOKALI (INCLUDING ITS EMPLOYEES, DIRECTORS, OFFICERS, AND AGENTS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF REVENUE, BUSINESS INTERRUPTION, OR REPUTATIONAL DAMAGE) ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES, OR ANY OTHER PRODUCT OR SERVICE PROVIDED BY HOKALI OR ANY THIRD PARTY, EVEN IF HOKALI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES AND AS A RESULT, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH STATES, THE LIABILITY OF HOKALI IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
WITH RESPECT TO THE THIRD-PARTY SERVICES AND ANY OTHER PRODUCTS OR SERVICES PROVIDED BY ANY THIRD PARTY, HOKALI SHALL HAVE NO LIABILITY OR OBLIGATION OF ANY NATURE OR TYPE RELATED THERETO, AND YOU WAIVE ANY AND ALL RIGHTS AND CLAIMS AGAINST HOKALI RELATED TO OR ARISING OUT OF SUCH THIRD-PARTY SERVICES AND OTHER PRODUCTS AND SERVICES PROVIDED BY A THIRD PARTY. YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY WITH RESPECT THE FOREGOING SHALL BE TO BRING ACTION AGAINST AND RECOVER FROM SUCH THIRD PARTY DIRECTLY.
WITH RESPECT TO THE LOCAL PHOTO SERVICE AND ANY SALE OR PURCHASE THEREON, HOKALI SHALL HAVE NO LIABILITY OR OBLIGATION OF ANY NATURE OR TYPE RELATED THERETO, AND YOU WAIVE ANY AND ALL RIGHTS AND CLAIMS AGAINST HOKALI RELATED TO OR ARISING OUT OF THE LOCAL PHOTO SERVICE. YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY WITH RESPECT TO THE FOREGOING SHALL BE TO BRING ACTION AGAINST AND RECOVER DIRECTLY FROM THE APPLICABLE BUYER OR SELLER.
WITH RESPECT TO THE HOKALI SESSIONS™ AND SPECIFICALLY, THE “PUBLIC” OR “PRIVATE” SESSION SETTING, HOKALI SHALL HAVE NO LIABILITY OR OBLIGATION OF ANY NATURE OR TYPE RELATED THERETO, AND YOU WAIVE ANY AND ALL RIGHTS AND CLAIMS AGAINST HOKALI RELATED TO OR ARISING OUT OF YOUR USE OF HOKALI SESSIONS™, INCLUDING THE “PUBLIC” OR “PRIVATE” SESSION SETTINGS. YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY WITH RESPECT TO THE FOREGOING SHALL BE TO BRING ACTION AGAINST AND RECOVER DIRECTLY FROM SUCH THIRD PARTY DIRECTLY.
WITH RESPECT TO YOUR OR ANY OTHER PERSONS USER CONTENT OR UPLOADED MATERIALS, HOKALI SHALL HAVE NO LIABILITY OR OBLIGATION OF ANY NATURE OR TYPE RELATED THERETO, AND YOU WAIVE ANY AND ALL RIGHTS AND CLAIMS AGAINST HOKALI RELATED TO OR ARISING OUT OF ANY SUCH USER CONTENT OR OTHER UPLOADED MATERIALS. YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY WITH RESPECT TO THE FOREGOING SHALL BE TO BRING ACTION AGAINST AND RECOVER DIRECTLY FROM THE USER PROVIDING SUCH USER CONTENT OR UPLOADING SUCH MATERIALS.
UNDER NO CIRCUMSTANCES SHALL HOKALI OR ITS SUBSIDIARIES, AFFILIATED COMPANIES, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, INFRINGEMENT, OR LOSS OF USE, DATA OR OTHER INTANGIBLES) THAT RESULT FROM: THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY CONTENT; ANY INFORMATION OR DATA IN THE SERVICES BEING INACCURATE, INCOMPLETE, FALSE, MISLEADING, INFRINGING, OR OTHERWISE DAMAGING IN ANY MANNER; OR ANY USER CONTENT, PHOTOGRAPHS, MATERIALS, OR OTHER DATA PROVIDED BY ANY CUSTOMER OR USER OF HOKALI OR THE SERVICES. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF HOKALI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
TO THE EXTENT HOKALI HAS ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, OR ANY OTHER PRODUCTS OR SERVICES OFFERED BY HOKALI OR ANY THIRD PARTY, HOKALI’S MAXIMUM TOTAL AGGREGATE LIABILITY SHALL BE LIMITED TO ACTUAL, DIRECT DAMAGES IN AN AMOUNT EQUAL TO THE LESSER OF (A) THE FEES PAID BY YOU TO HOKALI FOR ACCESS TO OR USE OF THE SERVICES OVER THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR (B) TWENTY U.S. DOLLARS ($20).
YOU AGREE THAT ANY CAUSE OF ACTION RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
As a condition of your use of Hokali’s website, Services, or other products and services, you agree you will not use this site for any purpose that is unlawful or prohibited by these terms, conditions, and notices.
Hokali reserves the right, but has no obligation, to release new or updated versions of the Services, or otherwise modify or discontinue any Service or portion thereof, at any time and in its sole discretion. Such modifications may include, or disable, certain features, functionality, or content.
To the extent you make any suggestions, submit ideas, provide comments or feedback, or otherwise recommend or identify any actual or potential new service or any modification or improvement to a Service to Hokali (collectively “Feedback”), you: (a) represent and warranty to Hokali that the Feedback and all content therein belongs solely to you and does not infringe on the intellectual property rights or other proprietary interests of any third party; (b) upon sending such Feedback you grant to Hokali an irrevocable, worldwide, royalty-free, perpetual, transferable license to the Feedback and all ideas, concepts, and other intellectual property therein; (c) you will have no right or interest in or to any development, software, product, Service, feature, function, or other development by Hokali which incorporates all or any portion of the Feedback.
These Terms are effective until terminated by Hokali. Hokali may terminate its license provided hereunder (in whole or in part), your Account, or your right to access, use, or participate in the Services, at any time without notice in Hokali’s sole discretion.
The license granted to you by Hokali under this Agreement with respect to any Material shall be immediately and automatically revoked for such Material upon the earliest of: (a) Hokali’s removal of such Material from its website or any other Service; (b) termination of your Account; or (c) notice from Hokali of such termination.
In the event of termination, you are no longer authorized to access this site, you must immediately securely delete or destroy any Materials that were downloaded or otherwise retained by you, and the following will survive such termination and remain binding upon you: the restrictions imposed on you with respect to the Materials, the disclaimers and limitations of liabilities set forth in these Terms, and your indemnification obligations.
In the event of the termination or revocation of the license provided to you hereunder, you must immediately return to Hokali and securely delete or destroy any Materials in your possession that were subject to such license. Upon any cancellation or termination of these Terms, your Account, or your access or use of the Services for any reason, Hokali will have no obligation to retain or provide to you copies of any User Content or other data or information in your Account, stored by Hokali, or otherwise uploaded to the Services.
Except as provided below, the Services are managed by Hokali, Inc. You agree that these Terms will be governed by the laws of the State of California, excluding its conflicts of law provisions. In the event of any dispute related to these Terms that is not subject to binding arbitration, you and Hokali will submit to the personal jurisdiction of and exclusive venue in the federal and state courts located in and serving Los Angeles County, California as the legal forum for any such dispute.
This section shall not deprive you of any mandatory consumer protections under the law of the country to which we direct Services to you, where you have your habitual residence.
You and Hokali agree to submit to binding arbitration any and all disputes, claims, or controversies of any kind, whether based on statute, regulation, constitution, common law, equity, or any other legal basis or theory, and whether pre-existing, present, or future, that arise out of or relate to our Services, these Terms, and/or any other relationship or dispute between you and us, including without limitation (i) the scope, applicability, or enforceability of these Terms and/or this arbitration provision, and (ii) relationships with third parties who are not parties to these Terms or this arbitration provision to the fullest extent permitted by applicable law (each a “Claim,” and collectively the “Claims”).
Any and all Claims which are not resolved by negotiation between the parties shall be submitted to binding arbitration in accordance with the Consumer Arbitration Rules of the American Arbitration Association (the “AAA Rules”), as amended, in effect at the time arbitration is initiated. The AAA Rules are available online at www.adr.org or by calling (800) 778-7879 and are hereby incorporated by reference. In the event of any inconsistency between this arbitration provision and the AAA Rules, such inconsistency shall be resolved in favor of this provision. If you decide to initiate arbitration, you agree to pay the initiation fee of $200 (or the amount otherwise required by the AAA Rules), and we agree to pay the remaining arbitration initiation fee and any additional deposit required by AAA to initiate your arbitration. We will pay the costs of the arbitration proceeding, including the arbitrator’s fees; however, other fees, such as attorney’s fees and expenses of travel to the arbitration, shall be paid in accordance with the AAA Rules and applicable law. We will pay all costs associated with any arbitration that we commence. A single, neutral arbitrator selected in accordance with the AAA Rules shall decide all Claims.
The arbitrator shall be an active member in good standing of the bar for any state in the United States and shall be either actively engaged in the practice of law for at least five years or a retired judge. The arbitrator shall honor claims of privilege recognized at law. Unless inconsistent with applicable law, and except as otherwise provided herein, each party shall bear the expense of its respective attorney, expert, and witness fees, regardless of which party prevails in the arbitration. Any arbitration proceedings shall be conducted in the federal judicial district of your residence, and you will be given the opportunity to attend the proceeding and be heard. The arbitrator’s decision will be final and binding upon the parties and may be enforced in any federal or state court that has jurisdiction. You and we agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of governmental agencies.
Neither you nor Hokali may act as a class representative, nor participate as a member of a class of claimants, with respect to any Claim. The Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or Hokali individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated. Accordingly, you and we agree that the AAA Supplementary Rules for Class Arbitrations do not apply to our arbitration. This arbitration provision and the procedures applicable to the arbitration contemplated by this provision are governed by the Federal Arbitration Act, notwithstanding any state law that may be applicable.
This arbitration agreement does not preclude you or us from seeking action by federal, state, or local government agencies. You and we also have the right to exercise self-help remedies, such as set-off, or to bring qualifying claims in small claims court so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. In addition, you and we retain the right to apply to any court of competent jurisdiction for provisional or ancillary relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with any of these Terms, nor a waiver of the right to have disputes submitted to arbitration as provided in this provision.
A court may sever any portion of this Binding Arbitration and Class Action Waiver Section that it finds to be unenforceable, except for the prohibitions on any Claim being handled on a class or representative basis, and the remaining portions of this arbitration provision will remain valid and enforceable. No waiver of any provision of this Section will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of these Terms.
THIS BINDING ARBITRATION AND CLASS ACTION WAIVER SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, AND THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES. OTHER RIGHTS THAT YOU OR HOKALI WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
Under California Civil Code Section 1789.3, California website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.
Any rights not expressly granted herein are reserved. If any part of this Agreement is for any reason found to be unenforceable, all other parts nevertheless remain enforceable. Failure of Hokali to enforce a right under these Terms will not act as a waiver of that right or the ability to later assert that right relative to the particular situation involved.
These terms, along with any Service specific terms and conditions, represent the entire understanding between you and Hokali and supersedes any prior agreements, statements, or representations in any manner or form.