Terms & Conditions

EFFECTIVE DATE: FEBRUARY 20, 2023

1. ACCEPTANCE AND MODIFICATIONS

Hawaiian Pelagic Fishing Tackle LLC, (“Hawaiian Malolo” “we,” “us,” and “our”) provides the website maintained at https://hawaiianmalolobirdteaser.com and its subpages (the “Site”) and the fishing products and related services available through the Site (the “Services”) to you are subject to these Terms of Service (the “Terms”). These Terms establish the terms, conditions, rights, and responsibilities applicable to your use of the Site and Services. Unless explicitly stated otherwise, any new features that augment or enhance the current Site and Services shall be subject to these Terms. If you choose to use other features of the Site and Service, additional terms governing your use of those features (“Additional Terms”) may apply in addition to these Terms. Your breach of any of these Terms or any Additional Terms causes an automatic termination of the rights and licenses granted to you under these Terms.

PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SITE AND SERVICES. BY USING THE SITE AND SERVICES, YOU ARE AGREEING TO COMPLY WITH THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT USE THE SITE OR SERVICES.

We may change these Terms from time to time for any reason. We will notify you of changes prior to those changes taking effect. If you do not agree with the new version, you must stop using the Site and Services and terminate your Account, if you have one.

2. AGE REQUIREMENTS

No one under the age of 18 may use the Site or Services. By using or attempting to use the Site and Services, you represent that you meet the age requirements and that you are able to enter into legally binding contracts, including these Terms.

3. OUR PROPRIETARY RIGHTS

We or our licensors own all intellectual property and proprietary rights, title and interest in and to the Site and the Services, including without limitation the HAWAIIAN PELAGIC FISHING TACKLE LLC trademarks and the Site copyrights. Except for the limited use rights granted to you in these Terms, you agree that you do not have and will not acquire any right, title, or interest in any of our intellectual property or other proprietary rights. Any rights not expressly granted in these Terms are expressly reserved. Without limiting the foregoing, you agree that you will not use or display the HAWAIIAN PELAGIC FISHING TACKLE LLC trademarks in any manner without our prior written permission.

4. USE OF THE SITE AND SERVICES

We grant you a limited, revocable, non-transferable, non-sublicenseable and non-exclusive license to access and use the Site and Services for their intended purposes (namely, for fishing product purchases and related services) in accordance with these Terms and any Additional Terms. These limited rights and licenses may be revoked at any time according to Section 11 (Termination of Access) below.

When using the Site and/or Services, you agree to comply with all applicable federal, state, and local laws including but not limited to, copyright law. Except as expressly permitted in these Terms, you may not use, reproduce, distribute, create derivative works based upon, publicly display, publicly perform, publish, transmit, or otherwise exploit the Site content for any purpose whatsoever without obtaining prior written consent from us or, in the case of third-party content, its respective owner.

You may not cause any harm to or otherwise interfere with the Site and/or Services, by (but not limited to):

Removing, altering, covering, or distorting any copyright, trademark, or other proprietary rights notice on the Site or Site content;
Circumventing, disabling or otherwise interfering with security-related features of the Site or Services including, without limitation, any features that prevent or restrict use or copying of any content or enforce limitations on the use of the Site or Services;
Using an automatic device (such as a robot or spider) or manual process to monitor the activity on, copy or “scrape” the Site, the Services or their content for any purpose without our express written permission, except for search engines, traffic counters, or similar basic performance monitoring technology;
Transmitting, using, distributing or uploading programs or material that contain malicious code, such as viruses, timebombs, cancelbots, worms, trojan horses, spyware, or other potentially harmful programs or other material or information;
Forging any TCP/IP packet header or part of the header information in any email or newsgroup posting for any reason;
Creating an undue burden on the Site or Services;
Collecting or harvesting any personal information from the Site or Services, including but not limited to user names, passwords, or email addresses;
Soliciting other users to join or become members of any commercial online service or other organization without our prior written approval;
Attempting to or interfering with the proper working of the Site or Services or impair, overburden, or disable the same;
Modifying, creating derivative works from, decompiling, reverse engineering, or disassembling any portion of the Site or Services;
Using network-monitoring software to determine the architecture of or extract usage data from the Site;
Engaging in any conduct, or encourage or assist any third party in any conduct, that violates any local, state or federal law, either civil or criminal;
Engaging in any activity, or encourage or assist any third party in any activity, that violates these Terms;
Impersonating another user, person, or entity;
Interfering with or disrupting the access of any user, host or network via any means including without limitation by overloading, flooding, spamming, or linking to coupon sites;
Violating U.S. export laws, including, without limitation, violations of the Export Administration Act and the Export Administration Regulations administered by the Department of Commerce; or
Engaging in any conduct that restricts or inhibits any other user from using or enjoying the Site or Services.

You will cooperate with us to investigate any suspected or actual activity that we suspect may be in breach of these Terms.

5. ACCOUNTS

You may need an account (“Account”) to use certain features or functionalities of the Site or Services. To set up an Account, you may be asked to provide your name, mailing address, email address, and payment information. You also will be asked to create an Account password. You must provide accurate information when setting up an Account and must keep all Account information current.

You are responsible for maintaining the confidentiality of your password and Account. You are fully responsible for all uses of your password and Account, including any unauthorized use. You agree to: (a) keep your password confidential and not share it with anyone else, and (b) immediately notify us of any unauthorized use of your password or Account.

You acknowledge and agree that we are authorized to act on instructions received through use of your password and Account, and that we may, but are not obligated to, deny access or block any transaction made through use of your password or Account without prior notice if we believe your password and Account are being used by someone other than you, or for any other reason.

6. YOUR COMMENTS

By submitting any comments, suggestions, ideas, questions, postings, web forms, contest entries, and other information and content to us (“Comments”), you grant to us the worldwide, perpetual, non-exclusive, transferable, sublicensable right and license to freely use your Comments to market and improve the Site and Services and for other promotional purposes through all sales channels and in all media, whether now known or later created, as we deem necessary. You are solely responsible for all of your Comments, and you waive any claim arising from or relating to use of your Comments.

7. ACCEPTABLE USE POLICY

Your use of the Site and Services constitutes your agreement that all Comments that you upload, store, submit and/or use comply with the following guidelines for your use of the Site and Services (“Acceptable Use Policy”). We do not review Comments before they are uploaded or stored to the Website. You are solely responsible for evaluating all of your Comments against the Acceptable Use Policy. By uploading Comments to the Site and Services, you accept sole liability and responsibility for any of your Comments that do not comply with the Acceptable Use Policy.

We have the right, but do not assume the obligation, to monitor Comments, and to determine whether they comply with these Terms, including without limitation the Acceptable Use Policy. We have the right in our sole discretion and for any reason whatsoever to edit, refuse to post, refuse to store, remove, or disable access to any Comments.

a. General Categories of Prohibited Comments. Your Comments violate this Acceptable Use Policy and are prohibited from the Site and Services if they:

Contain hateful or racist terms or images or symbols, or glamorize the actions of individuals or groups advocating ethnic cleansing, genocide, or similar activities;
Are harassing, threatening, abusive, libelous, defamatory, or invasive of privacy or publicity rights;
Impersonate another;
Depict or promote violence or suicide;
Include the likeness of a minor;
Include or reveal the personal information of another person;
Contain a formula, instruction, or advice that could cause harm or injury;
Are vulgar, obscene, profane, pornographic, or otherwise objectionable or in bad taste, as determined by Hawaiian Malolo; or
Constitute or encourage conduct that would constitute fraud, a criminal offense, give rise to civil liability, or otherwise violate any applicable law or regulation.

b. Comments Prohibited Under Intellectual Property Laws. Your Comments also violate this Acceptable Use Policy and are prohibited from the Site and Services if they may violate or infringe in any way upon the rights of others, including, but not limited to, any copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right of any person or entity. Some examples of Comments that should not be uploaded or submitted to the Site and Services include:

The names, logos, pictures or other intellectual property of musical groups or musical artists, sports teams, colleges or universities, clubs, organizations, associations;
Photos, logos, caricatures or other artwork depicting actors, actresses, musical artists, or other celebrities;
The trademarks, logos, or names of companies; or
Pictures or photographs of products (including but not limited to toys).

The above list only provides examples of submissions that may violate the intellectual property and other proprietary rights of third parties, and is not exhaustive. If you have questions about whether content or materials you would like to upload to the Site may violate the intellectual property or other proprietary rights of another person, you should speak with an attorney.

8. PRODUCT SALES

a. Products. Through the Site and Services, you can place orders for fishing products (“Products”) in a la carte purchases (“Standalone Purchases”) or through a subscription (“Subscription”). You are responsible for knowing the local laws and ordinances that govern fishing activities wherever you may be fishing. Hawaiian Malolo will not be liable for your use of any Product ordered through the Services that are not legal to use wherever you may be fishing.

b. Standalone Purchases. You may make Standalone Purchases by selecting Products and adding them to your cart and then completing the purchase transaction process, as directed on the Site. By making a purchase through the Site, you are authorizing Hawaiian Malolo to charge the payment method (e.g., credit card) chosen for the amount indicated on the purchase confirmation page. Returns for Standalone Purchases are subject to Hawaiian Malolo’s Refund & Returns Policy. The Refund & Returns Policy is subject to change in our sole discretion without notice. Once you have made a Standalone Purchase, you may cancel your order so long as your order has not yet shipped. If you wish to cancel any Standalone Purchase, please contact Customer Service at info@hawaiianmalolobirdteaser.com. You must include your order number in your cancellation request.

c. Hawaiian Malolo Subscriptions. By registering an Account and enrolling in a Subscription (“Enrollment”), you will choose which of our periodic shipments you wish to receive, and also provide other information that will assist us to fulfill your orders and your expectations. We will use such information to fulfill your periodic orders and we may use such information in order to present you with opportunities for additional products that we feel may be of interest to you. You will also register a payment method (e.g., a credit card) and such registration of your payment method constitutes your authorization to charge such amounts to that payment method and otherwise constitutes your promise to pay for items purchased from the Site.

Upon Enrollment, you will choose which one or more of our Product plans you wish to order. We will send shipments to you at the frequency and value that you choose. You acknowledge and agree that it is impossible for the value of our shipments to exactly equal the approximate value you have chosen, and your order from Hawaiian Malolo signifies your acknowledgment that the value of each shipment will be within one U.S. Dollar of the value that you have chosen. You may change the desired approximate value of your periodic shipment, or cancel your Subscription at any time. Any change or cancellation of Subscription will be effective immediately as to all Products not yet billed to your account as of the date and time of the change or cancellation. Products already billed but not sent as of the date and time of the change or cancellation will be sent as previously scheduled and cannot be refunded. You may change or cancel your Subscription by accessing your Account through the Site or by contacting Customer Service at info@hawaiianmalolobirdteaser.com.

Your use of the Site is your acknowledgement that you have enrolled to receive fishing-related products that are unknown to you at the time of ordering and receipt by you. Hawaiian Malolo offers no refunds or credits for returned Subscription Products except in our sole discretion. If you did not receive your Subscription shipment during any month, you must contact us within 30 days of that month’s shipment date in order to receive a replacement.

d. Online Membership. By registering an Account and enrolling in an online Membership (“Enrollment”), you will provide other information that will assist us to fulfill your orders and your expectations. We will use such information to fulfill your orders and we may use such information in order to present you with opportunities for additional products that we feel may be of interest to you. You will also register a payment method (e.g., a credit card) and such registration of your payment method constitutes your authorization to charge such amounts to that payment method and otherwise constitutes your promise to pay for items purchased from the Site.

Upon Enrollment, you will choose which one or more of our payment plans you wish to order. You may cancel your Membership at any time. Any change or cancellation of Membership will be effective immediately after the period already billed to your account as of the date and time of the change or cancellation. Membership already billed but not realized as of the date and time of the change or cancellation will continue as previously scheduled and cannot be refunded. You may change or cancel your Membership by accessing your Account through the Site or by contacting Customer Service at info@hawaiianmalolobirdteaser.com.

e. Product Descriptions. All Product features, content, specifications, and prices described or depicted on the Site and Services are subject to change at any time without notice. Certain measures, attributes, and similar descriptions are approximate and are provided for convenience purposes only. We make reasonable efforts to accurately display the attributes of the Products, including (if applicable) the colors, fonts, and design sizes; however, the actual colors, fonts and designs you see on the device you use to access the Site and Services will depend on your device and its systems, and we cannot guarantee that your device will accurately display such Product attributes. The inclusion of any Products on the Site at a particular time does not imply or warrant that these Products will be available at any time. We attempt to ensure that information on the Site is complete, accurate, and current. Despite our efforts, the information on the Site may occasionally be inaccurate, incomplete, or outdated. We make no representation as to the accuracy, completeness, or currency of any information on the Site. For example, Products included on the Site may be unavailable, may have different attributes than those listed or depicted or may actually carry a different price than that stated on the Site. In addition, we may make changes in information about price and availability without notice.

f. Product Orders and Sales. By placing an order using the Site and Services, a customer makes a binding offer for a contract of sale. We will send an order confirmation email to the customer. The order confirmation is not an acceptance of the order, but only an acknowledgement that the order was received. The offer is accepted when we confirm in a second email to the customer that we have either begun to process or shipped the order. We do not guarantee the continued availability of any Product found on the Site or Services. We reserve the right, without prior notice, to limit the order quantity on any Product and/or to refuse service to any customer. We also may require verification of information prior to the acceptance and/or shipment of any Product order.

g. Delivery, Shipment and Title. We will make delivery of accepted Product orders in accordance with our Refund and Returns Policy.

h. Payments. Customers may choose to pay by credit card or PayPal. We reserve the right to limit the method of payment chosen by the customer depending on order value, shipment destination, or other criteria. In addition, we may offer one-time promotional codes from time to time. One-time promotional codes may only be used once per household and we reserve the right to cancel orders made by customers abusing this policy. Additional terms may apply when you submit the promotional code on the Site.

i. Purchaser responsibility. Hawaiian Malolo assumes no responsibility and shall not be liable for any loss or damage caused by, or resulting from, misapplication of any product sold from the hawaiianmalolobirdteaser.com website. Our products are sold with the express understanding that the purchaser and/or users are thoroughly familiar with the correct application and proper care.

It is the purchasers’ and users’ responsibility to determine the suitability of a product for any particular use. Check all applicable industry, trade association, federal, state and local regulations. Read and understand all cautions and warnings before ordering from this web site.

Teasers and daisy chains sold by Hawaiian Malolo are intended and sold for legitimate sporting purposes only. The purchase, use, and ownership of knives are subject to a wide variety of local laws and regulations. Due to the complexity and constantly changing nature of laws and regulations, it is impossible for Hawaiian Malolo to be aware of every restriction in every location in which our lures and daisy chains may be sold or carried. It is the responsibility of the buyer to investigate and comply with the laws and regulations that apply in his or her specific area. The purchaser and / or user are solely responsible for any claims resulting from violation of these laws and/or regulations.

9. LINKS

a. Third Party Links. The Site and Services may provide links to third-party websites, advertisements, or resources. Because we have no control over such sites, advertisements, or resources, we are not responsible for the availability of such external websites or resources, and we do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such third-party sites or resources. We are not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any such content, goods, or services available on or through any such third-party website or resource.

b. Linking to the Site. By linking to the Site, you will not misrepresent your relationship with us or present false or misleading impressions about us. No hyperlinks to the Site may be used in a manner that implies or suggests that we approve or endorse you, your website, on your social media accounts, or your goods and services. We will have no responsibility or liability for any content appearing on your website or social media accounts. No link may appear on any page on your website, on your social media accounts, or within any context containing content or materials that may be interpreted as libelous, obscene, or criminal, or which infringes, otherwise violates, or advocates the infringement or other violation of, any third party rights. Images of the Hawaiian Malolo Bird Teaser logo may not be used to link to the Site without our prior, express written permission. We reserve the right, at any time and in our sole discretion, to request that you remove from your website and/or social media accounts all links to the Site or any of its contents. Upon our request, you agree to immediately remove all links to the Site. Thereafter, your posting of any future links to the Site will require our express written permission.

10. MODIFICATIONS TO THE SITE AND SERVICES

We reserve the right at any time in our sole discretion to modify, discontinue, or remove, temporarily or permanently, the Site and/or Services (or any part thereof) with or without notice. We will not be liable to you or to any third party for any such modification, suspension, removal, or discontinuance. We do not guarantee that any of your Comments or any other Site content will be available on the Site, our servers and/or directories at any time, or for any period of time.

11. TERMINATION OF ACCESS

We may, in our sole and absolute discretion and without notice or liability to you or any third party, immediately suspend, limit your access to and/or terminate your access to the Site, Services and/or your Account for any reason or for no reason, including without limitation: (a) if we believe in our sole discretion that you have violated these Terms, any Additional Terms, or any applicable laws or regulations; (b) at the request of law enforcement, government agencies or courts; (c) if you ask us to close your Account; (d) if we discontinue or materially modify the Site or Services (or any part thereof); (e) if unexpected technical or security issues or problems arise; (f) if we believe in our sole discretion that your use or access to the Site, Services or your Account may create risk (including but not limited to legal risk) for us, our affiliates, contractual partners, or users; and/or (g) following extended periods of inactivity on your Account. Termination of your access to the Site, Services and/or your Account may include in our sole discretion, but is not limited to: (x) removal of access to some or all offerings on the Site and Services; (y) the deletion of some or all of your Comments, Account information and/or other content associated with your use of the Site, Services and/or your Account (or any part thereof) from the Site, our servers and/or directories; and/or (z) banning you from using the Site and Services by any available means, including without limitation by blocking your IP address(es).

Any suspension or termination shall not affect your obligations to us under these Terms. The provisions of these Terms which by their nature should survive the suspension or termination of your access to or use of the Site, Services and/or your Account, shall survive including, but not limited to, the rights and licenses that you have granted hereunder, indemnities, releases, disclaimers, limitations on liability, provisions related to choice of law, arbitration and dispute resolution, no class action, no trial by jury, and all of the miscellaneous provisions set forth below.

12. INDEMNITY

You agree to indemnify, defend, and hold Hawaiian Malolo and its parents, subsidiaries, related companies, and controlled affiliates, and its and their respective members, officers, directors, employees, agents, partners, licensors, service providers, strategic partners, and distribution partners (collectively, the “Indemnified Parties”), harmless in connection with any third-party claims, liabilities, losses, damages, obligations, costs, and expenses (including but not limited to reasonable attorneys’ fees and costs) (“Claims”) arising out of or relating to your use of the Site or Services, your Comments, your breach of these Terms (including but not limited to the Shipping and Return Policy and any other Additional Terms incorporated by reference herein), or your acts and omissions relating to any of the foregoing. We have the right to control the defense, settlement and/or other resolution of any Claims, at your sole cost and expense. You may not settle or otherwise resolve any Claim without our express written permission.

13. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK. THE SITE, SERVICES, THE SITE CONTENT, AND ALL PRODUCTS AND SERVICES PROVIDED ON OR THROUGH THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT OF THE LAW, THE INDEMNIFIED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, INCLUDING ANY: (A) WARRANTIES THAT THE SITE, SERVICES, SITE CONTENT, AND/OR ANY PRODUCTS OR SERVICES PURCHASED ON OR THROUGH THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS; (B) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF THE SITE, SERVICES, SITE CONTENT, AND/OR ANY PRODUCTS OR SERVICES PURCHASED ON OR THROUGH THE SITE OR SERVICES; (C) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE; (D) WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SITE AND/ OR SERVICES OR ACCESSED THROUGH THE SITE AND/ OR SERVICES; (E) WARRANTIES CONCERNING THE CAPACITY, COMPLETENESS, ACCURACY, OR RELIABILITY OF THE INFORMATION OR RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE AND/OR SERVICE; (F) WARRANTIES THAT YOUR USE OF THE SITE WILL BE SECURE OR UNINTERRUPTED; AND (G) WARRANTIES THAT THE SITE, SERVICES AND/OR SITE CONTENT WILL BE ERROR-FREE OR THAT ERRORS IN THE SITE, SERVICES AND/OR SITE CONTENT WILL BE CORRECTED. WE ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO PROVIDE ANY CONTENT OR TO STORE ANY PERSONALIZATION SETTINGS OR CONTENT. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SITE OR SERVICES IS DOWNLOADED AND USED AT YOUR SOLE DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH CONTENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SITE OR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

14. LIMITATION OF LIABILITY

WE MAY USE THIRD PARTIES TO PROVIDE CERTAIN SERVICES ACCESSIBLE THROUGH THE SITE. WE WILL NOT BE LIABLE TO YOU FOR THEIR ACTS OR OMISSIONS.

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, THE NEGLIGENCE OF ANY PARTY, WILL THE INDEMNIFIED PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF LOSS OF USE, DATA LOSS, OR OTHER INTANGIBLE LOSSES (EVEN IF THE INDEMNIFIED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM, ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH YOUR USE OF, OR YOUR INABILITY TO USE, THE SITE OR SERVICES, UNDER ANY THEORY OF LIABILITY. YOUR SOLE REMEDY, AND OUR AGGREGATE LIABILITY IN CONNECTION WITH THESE TERMS OR YOUR USE OF THE SITE OR SERVICES SHALL IN ALL EVENTS BE LIMITED TO THE GREATER OF FIFTY DOLLARS ($50.00) OR THE INVOICED AMOUNT PAID TO US FOR THE PRODUCTS GIVING RISE TO SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE PROVISIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE FULLEST EXTENT OF THE LAW.

YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT WE WILL NOT BE LIABLE FOR THE ILLEGAL, OFFENSIVE OR DEFAMATORY CONDUCT OF OTHERS, INCLUDING BUT NOT LIMITED TO ANY SUCH CONDUCT BY YOU, AND THAT YOU BEAR ALL RISK AND LIABILITY ASSOCIATED WITH YOUR CONDUCT AND CONTENT.

15. RELEASE

YOU HEREBY RELEASE HAWAIIAN. MALOLO AND ITS PARENTS, SUBSIDIARIES AND AFFILIATES AND THEIR RESPECTIVE OWNERS, OFFICERS, DIRECTORS, MANAGERS, REPRESENTATIVES, AFFILIATES, SUCCESSORS, ASSIGNS, AGENTS, SHAREHOLDERS, EMPLOYEES AND BUSINESS PARTNERS FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF, RELATING TO OR IN ANY WAY CONNECTED WITH YOUR USE OF THE SITE AND/OR SERVICES. IF YOU ARE A RESIDENT OF CALIFORNIA, YOU WAIVE CALIFORNIA CIVIL CODE § 1542 WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IS KNOWN BY HIM MUST HAVE MATERIALLY AFFECTIVE HIS SETTLEMENT WITH THE DEBTOR.”

16. DATA PRIVACY

We and our service providers and other partners collect information from and/or about you when you use the Site and Services, and process that information in accordance with our Privacy Policy.

17. DISPUTE RESOLUTION

All disputes relating to the interpretation of these Terms or the rights of the parties hereunder will be exclusively settled by arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules. Disputes involving $75,000 or less shall use the AAA’s Expedited Rules. The parties shall mutually agree upon a single commercial arbitrator, and in the absence of agreement, the AAA shall select the arbitrator. The place of arbitration will be Honolulu, Hawaii. The parties will share equally in the costs of arbitration payable to the AAA, including the arbitrator. The award of the arbitrator will be accompanied by a reasoned opinion. Judgment on an arbitration award may be entered in accordance with the Federal Arbitration Act in any federal court having jurisdiction. You acknowledge and agree that you and Hawaiian Malolo are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Hawaiian Malolo otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. The parties to this agreement may, notwithstanding the above, seek equitable relief in any proper court to enjoin a breach or threatened breach of any obligations under this agreement that might cause irreparable harm (without any requirement to post bond).

18. MISCELLANEOUS

a. Governing Law. These Terms and the relationship between you and us shall be governed by the laws of the State of Hawaii without regard to its conflict of law provisions.

b. Waiver and Severability of Terms. The failure of Hawaiian Malolo to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid or unenforceable, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the invalid or unenforceable provision, and all other provisions of these Terms shall remain in full force and effect.

c. No Contest. Our electronically or otherwise properly stored copy of these Terms will be deemed to be the true, complete, valid, authentic, and enforceable copy, and you agree that you will not contest the admissibility or enforceability of our copy of these Terms in connection with any action or proceeding arising out of or relating to these Terms.

d. Assignment. We may assign our rights and duties under these Terms at any time to any third party without notice. You may not assign these Terms without our prior written consent.

e. No Third Party Beneficiaries. You agree that, except as otherwise expressly provided in the Terms, there shall be no third party beneficiaries to these Terms.

f. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Site, Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.

g. Section Titles. The section titles in these Terms are for convenience only and have no legal or contractual effect.

h. Entire Agreement. These Terms (together with the Shipping and Return Policy and any other any Additional Terms incorporated by reference herein) constitute the entire agreement between you and us with respect to your access to and use of the Site and Services, and any and all other written or oral agreements or understandings previously existing between you and us with respect to the subject matter hereof are hereby superseded and cancelled.

i. Force Majeure. Failure by either party to perform any obligation hereunder shall be excused if and for so long as such breach or failure to perform is caused by a force majeure event, and prompt notice thereof has been given to the other party. If either party fails to perform any duty or obligation hereunder as a result of a force majeure event, such party shall be required to fulfill its obligations hereunder within a reasonable time frame after the force majeure event ceases to exist.

j. Questions. Please contact us with any questions regarding the Site, Services or these Terms at info@hawaiianmalolobirdteaser.com or through the “Contact” section of the Site. Any feedback or questions that you provide shall be deemed to be non-confidential, and we shall be free to use such information in accordance with our Privacy Policy.