Last Updated and Effective: February 15, 2023
FIRST, AN IMPORTANT MESSAGE: PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THE WEBSITE, AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS, INCLUDING, BUT NOT LIMITED TO, WAIVERS OF RIGHTS, LIMITATION OF LIABILITY, AND YOUR INDEMNITY TO US. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN COURTS OR JURY TRIALS, AND LIMITS THE REMEDIES AVAILABLE IN THE EVENT OF A DISPUTE.
These Terms constitute a binding agreement between you and us. Each time that you access or use the Website, you are indicating that you have read and understand the Terms, and that you agree to comply and be legally bound by them. If you do not agree to the Terms, you may not access or use the Website or Services.
If you are accepting or agreeing to the Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to act on behalf of and bind that entity to the Terms.
- ABOUT THE TERMS
- IMPORTANT INFORMATION ABOUT THE WEBSITE
- USER CONDUCT GUIDELINES
- INTELLECTUAL PROPERTY OWNERSHIP
- NO ENDORSEMENT
- WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY & INDEMNIFICATION
- GOVERNING LAW & DISPUTE RESOLUTION
1. ABOUT THE TERMS
1.1 Key Terms
- “Services” refers to any services or products provided by Ohana and its service providers, including any and all related services and promotions, that is not otherwise subject to a written agreement between you and Ohana.
- “Users” means any and all persons that access or use the Website. References to “access” and/or “use” of the Website (and any variations thereof) include the acts of accessing or browsing the Website and accessing or using the Services.
- “Website” refers, collectively, to any and all websites owned or operated by Ohana (including the website currently located at realty.ohanare.com), Services, and other technology through which Ohana operates its business. References to the “Website” include any and all features, functionality, tools and content available on or through each such website.
- “Website Content” refers to any and all videos, text, photos, information and other content included, provided or made available on or through the Website.
- “Ohana,” “we,” or “us” refer to Ohana Realty Corp and our officers, directors, employees, contractors and agents. To the extent applicable, they also refer to our affiliates, service providers and licensors, and their respective officers, directors, employees, contractors and agents.
1.2 Website Rules and Supplemental Terms
- IMPORTANT INFORMATION ABOUT THE FUNCTIONAL LIMITATIONS OF THE WEBSITE AND/OR THE SERVICES;
- YOUR OBLIGATION TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS;
- LIMITATIONS OF OUR LIABILITY TO YOU; AND
- A REQUIREMENT THAT YOU PURSUE CLAIMS OR SEEK RELIEF AGAINST US (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, RATHER THAN AS A PARTICIPANT IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
YOUR ACCESS TO AND USE OF THE WEBSITE AND SERVICES IS CONDITIONED ON YOUR ACCEPTANCE OF AND COMPLIANCE WITH THESE TERMS.
1.3 Amendment of Terms
Ohana reserves the right, in its sole discretion, to amend the Terms, at any time and without prior notice, including to change, modify, add to, update or remove terms and conditions (collectively “amend” or “update”). If we choose to amend the Terms, we will update the Effective Date at the top of the Terms and post the updated version. We may also, at our option, choose to notify you by e-mail or another means. By continuing to use the Website after we have posted an updated version of the Terms or otherwise notified you of an update, you are affirming that you agree to be bound by the amended Terms. This provision is subject to a few limitations in the “Dispute Resolution” section below. If the amended Terms are not acceptable to you, your only recourse is to stop using the Website.
No other modification, amendment, supplement of or to the Terms will be binding on Ohana unless it is in writing and signed by an authorized representative of Ohana.
1.4 Consequences of Non-Compliance
Your failure to comply with the Terms may result in the suspension or termination of your access to the Website, and may subject you to civil and criminal penalties.
2. IMPORTANT INFORMATION ABOUT THE WEBSITE
2.1 License to Use
Subject to your compliance with the Terms, Ohana grants you a limited non-exclusive, non-transferable, non-assignable and non-sublicensable license to access and use the Website and Services. This license is granted for the sole purpose of enabling you to use and enjoy the benefit of the Website as provided by Ohana, in the manner permitted by the Terms.
2.2 Set-Up and Operating Requirements
In order to access the Website or use the Services, you must have internet access (e.g., Wi-Fi or 3G /4G with a data plan).
2.3 Service Limitations
In addition to the set-up and operating requirements, there are certain other circumstances that may limit the availability or effectiveness of the Services.
- Service Area – Unless otherwise agreed to in writing by us, the Website is configured for use in the United States only, and is not intended for use outside of the United States.
- Service Interruptions – The Services can be interrupted for any reason that disrupts internet access or GPS capabilities, including in the event of:
- electrical power outages;
- natural disasters;
- electronic interference;
- an outage affecting the data transport service;
- failure of originating or terminating access lines;
- network congestion and/or reduced routing speed Ohana’ network or another network (for example, due to spikes in call volume in the wake of local or national disasters), causing failed calls, busy signals or unexpected answering wait times (which may be longer than emergency calls placed via traditional telephone networks);
- compatibility issues; or
- equipment failures relating to your equipment or Ohana’ equipment, including, hardware or software failures or misconfiguration affecting Ohana, its offices, data centers, and/or any of its service providers.
YOU AFFIRM THAT YOU HAVE READ THE FOREGOING AND ACKNOWLEDGE THAT:
- OHANA DOES NOT AND CANNOT GUARANTEE THAT THE WEBSITE WILL BE CONTINUOUS OR ERROR-FREE. FOR EXAMPLE, THE WEBSITE WILL NOT BE AVAILABLE OUTSIDE OF THE SERVICE AREA OR UNDER CIRCUMSTANCES SET FORTH ABOVE.
- IF YOUR MOBILE OR DATA PLAN SERVICES OR ACCESS TO THE INTERNET OR OUR WEBSITE IS/ARE SUSPENDED, CANCELLED OR TERMINATED (E.G., AS A RESULT OF BILLING ISSUES OR OTHER BREACH), YOU MAY NOT BE ABLE TO USE SOME OR ALL OF THE WEBSITE.
- YOU ARE EXCLUSIVELY RESPONSIBLE FOR YOUR USE OF THE WEBSITE AND WEBSITE CONTENT. ABUSE OF THE SERVICES MAY SUBJECT YOU TO CIVIL AND CRIMINAL FINES AND PENALTIES.
2.5 Modifications and Updates to the Website and Services
Ohana reserves the right, in its sole discretion, to modify or discontinue offering the Website and/or Services, in whole or in part, including any features, functionality, tools or content thereof, at any time, for any reason or no reason, with or without notice to you. We also retain the right to impose limits on your use and storage of the Website Content at our sole discretion at any time without prior notice to you.
You agree that Ohana has no obligation to provide any updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions.
2.6 International Users
The Website is controlled and operated within the United States and, unless otherwise agreed to in writing by us, is not intended for use outside of the United States. You are hereby prohibited from accessing or using the Website from any territory where the Website or any of the features, functionality, tools, content thereof, is illegal. If you choose to access the Website from a location outside the United States, you do so at your own risk and you are solely responsible for compliance with applicable laws, rules and regulations, including export laws and any regulations and local laws regarding online conduct and content.
2.7 Performance Information
Any performance information or other Ohana financial information provided on the Website refers to past performance. Past performance is not indicative of future results, which may vary. No representation is being made that any investment will, or is likely to, achieve profits or losses similar to those achieved in the past, or that significant losses will be avoided.
The case studies presented herein are presented for informational purposes only. A full list of all investments made by Ohana during the past 12 months will be provided upon request. It should not be assumed that the recommendations made in the future will be profitable or will equal the performance of the investment presented herein.
2.8 Reliance on Information Posted
All Website Content is made available solely for general information purposes and is not intended to and does not constitute an offer or solicitation to purchase, subscribe for or sell any securities, service, investment, or product or to provide any recommendations or information to be relied upon as financial, securities, investment, or any other advice. We do not warrant the accuracy, completeness or usefulness of Website Content. We encourage you to seek appropriate advice from legal, financial and other advisers before making any investment or financial decisions. An offer or solicitation regarding any Ohana products will be made only through a final private placement memorandum, subscription agreement, and other related or similar documents; any such investments will be subject to the terms and conditions contained in such documents, including the qualifications necessary to become an investor. Investments in Ohana products are speculative and involve a high degree of risk. Any reliance you place on Website Content is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such information by you or any other User, or by anyone who may be informed of any of its contents.
3. USER CONDUCT GUIDELINES
Any time you access or use the Website, you are required to comply with our User Conduct Guidelines, as set forth below.
You are not authorized to access or use the Website:
- to impersonate any person or entity, or falsify or otherwise misrepresent your identity, credentials, affiliations or intentions;
- to collect, store or use any information from or about another User, other than to provide aid to such User or as otherwise authorized and intended by such User;
- to “stalk” or harass any other User;
- to distribute unsolicited commercial or bulk electronic communications (or, “spam”), chain letters or “pyramid” schemes;
- for political campaigning, recruiting votes or soliciting donations or other support for legislative or other initiatives;
- to systematically retrieve information or content to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
- if you are not able to form legally binding contracts (for example, if you are under 18);
- if you are a person barred from receiving services under the laws of the United States or other applicable jurisdiction; or
- for any other purposes that are not expressly permitted by the Terms.
Further, you may not:
- access, copy, distribute, share, publish, use or store, or prepare derivative works from any Website Content that belongs to Ohana, another User or to a third party, including works covered by any copyrights, trademark, patent, or other intellectual property right, except with prior express permission of the person or entity party holding the rights to license such use;
- circumvent our systems, policies, including by attempting to access or use the Website if your access has been suspended or cancelled or you have otherwise been temporarily or permanently prohibited or blocked from using the Website;
- access, search, collect information from, or otherwise interact with the Website by “scraping,” “crawling” or “spidering” the Website, by the use of any software, device, script or robot, or by any other means (automated or otherwise) other than through the currently available, published interfaces that are provided by Ohana, unless you have been specifically authorized to do so in a separate agreement with Ohana;
- use, display, mirror or frame the Website, or any feature, functionality, tool or content of the Website, Ohana’ name, any Ohana trademark, logo or other proprietary information, without Ohana’ express written consent;
- interfere with, disrupt, damage or compromise the Website or our systems or the access of any User, host or network in any way, including through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or by overloading, flooding, spamming, mail-bombing the Website or otherwise imposing an unreasonable or disproportionately large load on the Website;
- access, tamper with or use non-public areas of any of the Website, Ohana’ computer systems, or the technical delivery systems of Ohana’ providers;
- probe, scan, or test the vulnerability of any system or network of Ohana or its providers, or breach or circumvent any security or authentication measures of such system or network;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Ohana or any of Ohana’ providers or any other third party to protect the Website;
- forge any TCP/IP packet header or any part of the header information in any e-mail or posting, or in any way use the Website to send altered, deceptive or false source-identifying information;
- attempt to decipher, decompile, disassemble or reverse engineer any of the code or software used to provide the Website;
- export or re-export the Website, except in compliance with the export control laws and regulations of any relevant jurisdictions;
- otherwise abuse the Website or breach the Terms; or
- attempt to do any of the foregoing, or advocate, encourage or assist any third party in doing any of the foregoing.
3.1 Reporting Misconduct
If you feel that another User has violated the Terms, abused the Website or otherwise acted inappropriately, you may report the User to Ohana at firstname.lastname@example.org. Ohana reserves the right, but assumes no obligation, to investigate and take appropriate action in response to such reports. Regardless of its action or inaction, in no event will Ohana be liable for the acts or omissions of any User or any third party.
If you are a California resident, you may also report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210. See the “California Residents” subsection below for the full information required under California Civil Code §1789.3.
Ohana reserves the right to investigate and prosecute violations of any and all reports, complaints and claims, or otherwise suspected misconduct or violations of the law to the fullest extent of the law.
When an issue arises, we reserve the right to consider such User’s performance history and the specific circumstances in applying our policies, and to determine how strictly to enforce such policies in an effort to achieve a fair outcome for all parties involved.
3.3 User Cooperation
You agree to cooperate with and assist Ohana or its representative in good faith, in any such investigations, including by providing us with such information as we may reasonably request.
4. INTELLECTUAL PROPERTY OWNERSHIP
4.1 The Website
The Website and Services, including any and all features, functionality, tools and content thereof, is protected by copyright, trademark, patent and other laws of the United States and foreign countries. You acknowledge and agree that the Website and Services, and all intellectual property rights therein are the exclusive property of Ohana and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark, patent marking, or other proprietary rights notices incorporated in or accompanying the Website or Services.
Without limiting the foregoing, you acknowledge and agree that the trade names, logos, and other trademarks and service marks associated with Ohana (the “Ohana Marks”) are the property of Ohana, and that you are not permitted to use the Ohana Marks without our prior written consent.
You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any features, functionality, tools or content of the Website or Services in any form or by any means, or sublicense the rights granted in the Terms, except as expressly permitted herein, without the prior written permission of Ohana or the intellectual property owner, as applicable.
This foregoing license is subject to modification or revocation at any time at Ohana’ sole discretion.
No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Ohana or its licensors, except for the licenses and rights expressly granted in the Terms. All rights not expressly granted to you by the Terms are hereby reserved.
We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the Website (“Feedback”). You may submit Feedback by e-mailing us, at email@example.com. You acknowledge and agree that all Feedback you give us (i) will be treated as non-confidential, and (ii) will be the sole and exclusive property of Ohana. Without limiting the foregoing, you acknowledge that your Feedback may be disseminated or used by Ohana or its affiliates for any purpose whatsoever, including developing, improving and marketing products. You hereby irrevocably transfer and assign to Ohana all of your right, title, and interest in and to all Feedback, including all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback.
You agree to sign and deliver such documents, and otherwise provide such assistance, as may reasonably be required from time to time to perfect Ohana’ rights in such improvements, enhancements and modifications.
5. NO ENDORSEMENTS
Users are required by the Terms to provide accurate information and, although Ohana may conduct certain limited checks and/or institute certain processes designed to help verify information provided by Users, we do not guarantee the completeness or accuracy of any information provided by any User, including the User’s purported identity, credentials or background.
Any indication that a User has been “verified” (or similar language) only means that the User has completed a relevant verification process. It is not an endorsement, certification or guarantee by Ohana about the User, including of the User’s identity, credentials or background. Any such description is intended only help you to evaluate and you make your own decisions about the identity and suitability of others whom you contact or interact with via the Website.
We recommend that you exercise due diligence when deciding to communicate or interact with another User, and we will not be responsible or liable for any damage or harm resulting from your interactions with other Users.
5.2 Links to Third-Party Websites and Services
The Website may also provide links to third-party websites, resources or services. You acknowledge and agree that Ohana is not responsible or liable for (i) the availability, terms or practices of such websites, resources or services, or (ii) the content, products or services available on or through such websites, resources or services, including that any information provided is complete, accurate or up-to-date. Links to such websites, resources or services do not imply any endorsement by Ohana of such websites, resources or services or the content, products or services available on or through such websites, resources or services. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites, resources or services or the content, products or services available on or through such websites or services.
We will not be responsible or liable for any damage or harm resulting from your interactions with such websites or services, or the content, products or services available on or through such websites or services.
6. WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY & INDEMNIFICATION
6.1 Warranties by Users
You represent and warrant to Ohana that:
(i) you have the power and authority to accept and agree to the Terms;
· you own or control all of the rights necessary to grant the rights and licenses granted herein;
(ii) you will not violate any federal, state or local laws, rules or regulations or infringe the rights of any third party, including, any intellectual property, privacy or publicity-related rights in connection with your access to or use of the Website and Services;
· the exercise by Ohana of the rights granted by you hereunder will not cause Ohana to violate any applicable laws, rules or regulations, to infringe the rights of any third party; and
(iii) all information provided by you will be complete, accurate and up-to-date when provided, and updated as necessary to ensure that it remains complete, accurate and up-to-date.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE WEBSITE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, OHANA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE WEBSITE OR SERVICES, OR THAT USE OF THE WEBSITE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, WARRANTIES AS TO THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY WEBSITE CONTENT.
6.3 Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW:
- THE ENTIRE RISK ARISING OUT OF OR RELATING TO YOUR USE OF THE WEBSITE IS AND REMAINS WITH YOU.
- WITHOUT LIMITING THE FOREGOING, OHANA DISCLAIMS ANY AND ALL LIABILITY RELATED TO (I) YOUR USE OF OR INABILITY TO USE THE WEBSITE, (II) THE ACTS OR OMISSIONS OF ANY OTHER USER OR ANY OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE WEBSITE, AND (III) ANY USER OR WEBSITE CONTENT ACCESSED, VIEWED OR DOWNLOADED IN CONNECTION WITH THE USE OF THE WEBSITE.
- IN NO EVENT WILL OHANA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR DAMAGES FOR LOST REVENUES OR PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT OHANA HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSIVE OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN THIS SECTION, SO THESE LIMITATIONS AND EXCLUSIONS APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, OHANA’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO ONE HUNDRED U.S. DOLLARS (US$100).
6.4 Basis of the Bargain
YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN OHANA AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
NOTHING IN THE TERMS FURTHER IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE FROM DEATH OR PERSONAL INJURY. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN THIS SECTION THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT REQUIRED BY LAW.
To the maximum extent not prohibited by applicable law, you agree to release, defend, indemnify, and hold Ohana its parent, subsidiaries, affiliates, licensors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless (collectively “indemnify” or any variation thereof) from and against any claims, liabilities, damages, losses, costs and expenses, including, any bodily injury, illness, death or damage to any real or personal property, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs, arising out of or relating to or in any way connected with (i) your access to or use of the Website, including any and all features, functionality, tools, content and promotions available on and through the Services, (ii) any interactions with any other User, (iii) your breach of the Terms, including any violation of national, federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (iv) your gross negligence or willful misconduct.
6.7 Obligation to Defend.
You agree that, at Ohana’ option, you will conduct the defense of any such claim or action; provided that, notwithstanding our election that you conduct the defense, (i) Ohana may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) you will not enter into any settlement or other compromise without the prior written approval of Ohana (which approval shall not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.
6.8 No Implied Indemnity.
No person or entity shall be entitled to any form of equitable or implied indemnification at any time, except as provided by the Terms.
7. GOVERNING LAW & DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND OHANA HAVE AGAINST EACH OTHER ARE RESOLVED.
7.1 Governing Law
The Terms shall be governed by and interpreted in accordance with the laws of the State of California without regard to conflict of law principles.
7.2 Dispute Resolution
Our customer-service department can resolve most customer concerns quickly and to the customer’s satisfaction. Please contact our customer support using the contact information below. In the event that you’re not satisfied with customer service’s solution (or if we have not been able to resolve a dispute we have with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Unless expressly limited by this Dispute Resolution provision, arbitrators can award the same damages and relief that a court can award. Any arbitration under these Terms will take place on an individual basis; class arbitrations and class actions are not permitted. In arbitration you are entitled to recover attorneys’ fees from us to at least the same extent as you would be in court.
You and we agree to arbitrate all Disputes (as defined below) between us, except for claims arising from bodily injury or that pertain to enforcing, protecting, or the validity of your or our intellectual property rights (or the intellectual property rights of any of our licensors, affiliates and partners). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, fraud, misrepresentation or any other statutory or common-law legal theory;
- claims that arose before these Terms or any prior agreement (including, but not limited to, claims relating to advertising);
- claims for mental or emotional distress or injury not arising out of physical bodily injury;
- claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
- claims that may arise after the termination of these Terms.
References to “we,” “our,” and “us” (unless the context requires otherwise) include our respective subsidiaries, affiliates, agents, employees, licensees, licensors, and providers of content as of the time your or our claim arises; our respective predecessors in interest, successors, and assigns; and all authorized or unauthorized users or beneficiaries of Services under this or prior agreements between us. You agree that you and we are each waiving the right to a trial by jury or to participate in a class action. These Terms evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of these Terms.
A party who intends to seek arbitration must first send to the other a written Notice of Dispute (“Notice”). The Notice to us should be sent by email to: firstname.lastname@example.org. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If we and you do not reach an agreement to resolve the Dispute within 30 days after the Notice is received, you or we may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by us or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or us is entitled.
The arbitration will be governed by the Commercial Arbitration Rules (“AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this arbitration provision, and will be administered by the AAA. (If the AAA is unavailable, another arbitration provider shall be selected by the parties or by the court.) The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by requesting them in writing. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision or whether a dispute can or must be brought in arbitration are for the court to decide. The arbitrator may consider but shall not be bound by rulings in other arbitrations involving different individuals. Any arbitration hearings will take place in Redwood City, California before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative, class, or private attorney general proceeding. If, after exhaustion of all appeals, any of these prohibitions on non-individualized declaratory or injunctive relief; class, representative, and private attorney general claims; and consolidation are found to be unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief sought with respect to a particular claim), then that claim or request for relief shall be severed, and all other claims and requests for relief shall be arbitrated.
Notwithstanding any provision in these Terms to the contrary, we agree that if we make any future change to this arbitration provision during your use of the Website, you may reject any such change by sending us written notice within 30 days of the change. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
7.3 Jurisdiction and Venue
Subject to the above arbitration provisions, you and Ohana agree that any and all disputes, claims and actions, at law or in equity, arising out of or relating to or in connection with the Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Website (collectively, “Disputes”) must be resolved exclusively by a court located in Redwood City, California, and each of us agrees that such courts shall have exclusive jurisdiction and venue for any such actions. You consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.
7.4 Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST OHANA ONLY ON AN INDIVIDUAL BASIS AND HEREBY WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW. FURTHER, UNLESS BOTH YOU AND OHANA OTHERWISE AGREE IN WRITING, THE COURT MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.
7.5 Future Amendments to this Section
Both of us agree that if we make any amendment to this Dispute Resolution section (other than an amendment to any notice address or site link provided herein) in the future, that amendment will not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the amendment. However, the amendment will apply to all other disputes or claims governed by this section that have arisen or may arise between you and Ohana. We will notify you of amendments to this section by posting the amended Terms on [insert URL]. If you do not agree to the amended terms, you must cease using the Website immediately. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Ohana in accordance with the provisions of this “Dispute Resolution” section as of the latest Terms you accepted.
Our collection and use of information about Users is governed by our Privacy Notice. By accessing and using the Website, you consent to the collection and use of this information, including the transfer of this information outside the United States and/or other countries, for storage, processing and use by Ohana. As part of providing you the Website, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Service, which you may not be able to opt-out from receiving.
8.2 Entire Agreement
You may not assign, transfer, delegate or sublicense any of your rights or obligations under the Terms, including by operation of law or merger or consolidation, without our express prior written consent, which may be granted or withheld in our sole discretion. Any attempted assignment, transfer, delegation or sublicense without the foregoing consent will be null and void. Ohana may assign, transfer, delegate and/or sublicense our rights and obligations under the Terms, in whole or in part, in its sole discretion, without restriction.
Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors and assigns.
8.4 No Agency
Except as otherwise expressly set forth herein, no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Terms.
8.5 Survival of Terms
Any notices or other communications permitted or required hereunder, including those regarding modifications to the Terms, will be in writing and given by Ohana (i) via e-mail (in each case to the address that you provide), or (ii) by posting to the Website. For notices made by e-mail, the date on which such notice is transmitted will be deemed the date of receipt.
Except as expressly set forth in the Terms, the exercise by either party of any of its remedies under the Terms will be without prejudice to its other remedies available under contract, at law, in equity or otherwise.
Except as otherwise provided in the Terms, if an arbitrator or a court of competent jurisdiction finds any provision of the Terms to be invalid, void or unenforceable, in whole or in part, for any reason, the offending provision will be enforced to the maximum extent permissible and will not affect the validity or enforceability of the remaining provisions, which will remain in full force and effect.
The headings in the Terms are for reference purposes only and do not limit or otherwise affect the meaning or interpretation of any of the provisions hereof.
8.11 Third-Party Beneficiaries
Except as otherwise expressly set forth herein, the Terms do not and are not intended to confer any rights or remedies upon any person other than the parties hereto.
In the Terms, unless the context requires otherwise: (i) “herein,” “hereof,” “hereunder,” “hereto,” and similar terms refer to the Terms collectively and as a whole, and not merely to the specific section, paragraph or clause in which the term appears; (ii) “or” connotes any combination of all or any of the items listed; and (iii) “including” (and any of its derivative forms) means “including but not limited to.”
8.13 Contact Us
If you have any questions or concerns, please contact Ohana at email@example.com.
You can also write to us at:
Ohana Realty Corp
1991 Broadway St.
Redwood City, CA 94063
8.14 California Residents
Pursuant to California Civil Code §1789.3, California residents are also entitled to the following specific consumer rights notice:
Complaints regarding the Website or Services or requests to receive further information regarding use of the Website or Services may be sent to the above address or to firstname.lastname@example.org.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210. Hearing impaired persons may call TDD (800)-326-2297 or TDD (916)-928-1227, see www.dca.ca.gov for additional information.
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