This web page represents a legal document that serves as the terms of use for our website (“Terms of Use”), www.activiter.com and any associated mobile application (collectively, “Website”), as owned and operated by Activiter, Co.. (“Activiter”). The last update to our Terms of Use was posted on https://www.activiter.com/terms-of-use.

Capitalized terms, unless otherwise defined, have the meaning specified within the Definitions section below. This Terms of Use, along with our Privacy Policy http://www.activiter.com/privacy-policy, and other posted guidelines within our Website, (collectively “Legal Terms”), constitute the entire and only agreement between you and Activiter, and supersede all other agreements, representations, warranties and understandings with respect to our Website and the subject matter contained herein. We may amend our Legal Terms at any time without specific notice to you. The latest copies of our Legal Terms will be posted on our Website, and you should review all Legal Terms prior to using our Website. After any revisions to our Legal Terms are posted, you agree to be bound to any such changes to them. Therefore, it is important for you to periodically review our Legal Terms to make sure you still agree to them.

By using our Website, you agree to fully comply with and be bound by our Legal Terms. Please review them carefully. If you do not accept our Legal Terms, do not access and use our Website.

If you do not accept our Legal Terms, you should not access our Website. If you have already accessed our Website and do not accept our Legal Terms, you should immediately discontinue use of our Website.

 

Definitions

 The terms: “us” or “we” or “our” refers to Activiter, the owner of the Website.

A “Member” is an individual that has registered with our Website to use our Website’s features.

A “Provider” is a Member of our Website that is a business offering tours, activities, and other travel-related goods and services to the general public and has registered with our Website to offer their goods/services. We refer to a Member who purchases goods/services from Providers as a “Customer”.

A “Profile” is an online collection of information provided by a Member about their business if a Provider, or generally about themselves if a Customer.

A “User” is a collective identifier that refers to either a Visitor or a Member.

A “Visitor” is someone who merely browses our Website.

All text, information, graphics, audio, video, and data offered through our Website, whether free to all or part of our paid features of our Website, are collectively known as our “Content”. We may refer to Content provided by our Members, whether as part of their Profile or in other postings to our Website, as “Member Content.” When we refer to our Website, our Content is included by reference.

 

Limited License

Activiter grants you a non-exclusive, non-transferable, revocable license to access and use our Website strictly in accordance with our Legal Terms. Your use of our Website is solely for the purposes as provided herein.

 

Our Relationship to You

Activiter is strictly a venue does NOT enter into any other relationship with you, other than that of an independent contractor. Our Legal Terms in no way create any agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between you and Activiter, other Users, or our affiliates.

 

Legal Compliance

You agree to comply with all applicable domestic and international laws, statutes, ordinances, and regulations regarding your use of our Website. Activiter reserves the right to investigate complaints or reported violations of our Legal Terms and to take any action we deem appropriate, including but not limited to canceling your Member account, reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to your profile, email addresses, usage history, posted materials, IP addresses and traffic information, as allowed under our Privacy Policy.

 

Eligibility and Registration for Membership

You may view some of our Content without becoming a Member of our Website. However, to use our Website, you may have to register and become a Member. Your membership is not transferable or assignable and is void where prohibited. You certify that you are at least age 18 years of age or older. If you are between the ages of 13 and 18, you certify that you have your parent’s permission to join our Website and become a Member. You may not access this website if you are under the age of 13.

By registering as a Provider, you are certifying that you are a legitimate tour or travel-related business and that you are the actual owner or authorized representative of the business and have the right to register your business with our Website.

Any registration by any Member in contravention of the above limitations is unauthorized, unlicensed and in violation of our Legal Terms. You agree to and to abide by all of the terms and conditions of our Legal Terms. Activiter has the sole right and discretion to determine whether to accept a Member, and may reject a Member’s registration, with or without explanation.

When you complete the registration process, you will create a user name and password that will allow you to access our Website. You agree to maintain the confidentiality of your password and are fully responsible for all liability and damages resulting from your failure to maintain that confidentiality and all activities that occur through the use of your password. You agree to immediately notify us of any authorized use of your password or any other breach of security regarding your account or information. You agree that Activiter shall not be liable for any loss or damage arising from your failure to comply with password security as discussed herein.

 

Information From Children

We do not knowingly solicit, collect or retain information from any individuals under the age of 13.

 

Providers and Sales of Goods/Services

As a Provider, you can upload information about your business, including address, phone, hours of operation, and other such relevant information. By uploading such information, you warrant to Activiter that such information is true to the best of your knowledge and is not in any way malicious, libelous, or otherwise illegal for you to transmit to our Website.

Our Website offers Providers the opportunity to sell their products and services through our Website. This service is strictly as a convenience to our Members and in no way means that Activiter endorses a specific Provider, guarantees their products/services, or that Activiter participates in any way in the sale of such products/services. Any purchases of products/services that a Customer may make through our Website are strictly between the Provider and Customer. By interacting through our Website as Provider and Customer, you both agree that at all times, you will look to each other for any issues or information related to such sale of products/services, including, but not limited to, costs, scope of services, product features, payment terms, late or non-payment issues, delivery dates, shipping information, refunds, exchanges, and warranties.

As a Provider, if you contact Customers outside our Website with correspondence, you agree to abide by such Customers’ requests to be removed from future correspondence. If we receive complaints that you are failing to do so, we reserve the right to terminate your Profile at our sole discretion with no notice to you.

 

Member Content

As a Member, any information you upload to our Website is considered Member Content. By uploading Member Content, you warrant to Activiter that you have legal right, whether by ownership, license, or otherwise, to transmit, display, and use the underlying associated text and/or images. You are solely responsible for insuring that you do not infringe the rights of any third parties in such Member Content and for any legal damages caused by your transmission, use, or display of Member Content.

You understand Member Content may contain material that someone may consider offensive, indecent, or objectionable. We have no control over Member Content provided by Members and do not in any way guarantee the quality, accuracy or integrity of such Member Content. Activiter is not responsible for the monitoring or filtering of any Member Content. Should any Member Content be found illegal, Activiter will submit all necessary information to the proper authorities.

If your Member Content is reported to Activiter as being in violation of third party rights (i.e. copyrights), or is reported as offensive or inappropriate, we may ask you to retract or otherwise modify the questionable Member Content within 24 hours of being notified by Activiter. Should you fail to comply with such a request or should Activiter otherwise deem it necessary, Activiter has full authority and sole discretion to remove the offending Member Content, restrict your ability to post further Member Content, and in our sole discretion, to immediately terminate your account without further notification to you.

You acknowledge that Activiter is NOT liable for loss or damage to Member Content nor do we warrant that we may have a backup of your Member Content. You should always maintain your own backup copies of Member Content.

Activiter does not make any ownership claims to your Member Content other than as noted within our Legal Terms. However, by uploading Member Content, you grant Activiter a perpetual, world-wide, royalty-free, irrevocable license to use, display, and redistribute your Member Content in any form we see fit.

 

Digital Millennium Copyright Act Compliance

If you believe that your work has been copied on our Website, or any of our other systems or networks in a way that constitutes, please provide the following information to Company for receipt of notification of claimed infringement (to ensure that your notification complies with the requirement of the Digital Millennium Copyright Act, please see 17 U.S.C. § 512(c)(3)):

·      An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;

·      A description of the copyrighted work that you claim has been infringed;

·      A description of where the material that you claim is infringing is located on the site;

·      Your address, telephone number, and email address;

·      A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

·      A statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Activiter can be contacted at:

By Mail: Activiter, Co.

Attn: Robert LaFontaine

3621 Nuuanu Pali Drive

Honolulu, HI 97817

By E-mail: support@activiter.com

Activiter will only respond to those notices that substantially comply with the above requirements. We will investigate your claim and will notify by the method of contact you used to file your notice with us.

Member Conduct

As a Member, you agree not to use our Website to do any of the following:

1. upload, post or otherwise transmit any Member Content that:

o   violates any local, state, federal, or international laws.

o   infringes on any patent, trademark, trade secret, copyright or other proprietary rights of any party.

o   harms, threatens, defames, promotes violence or illegal activities, or is otherwise vulgar, obscene, abusive, harassing, tortuous, libelous, invasive of another’s privacy, hateful, or racially, ethically or otherwise objectionable.

o   links directly or indirectly to any materials to which you do not have a right to link.

o   contains any private information of any third party, including, without limitation, addresses, phone numbers, email addresses, government issued tax or identification numbers and credit card numbers.

o   contains Website viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer Website or hardware or telecommunications equipment, or to extract information from our Website.

o   contains any unsolicited or unauthorized advertising, solicitations, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation.

o   you do not have a right to transmit under any law (i.e. intellectual property laws) or under contractual or fiduciary relationships (i.e. non-disclosure Agreements).

o   in the sole judgment of Activiter, is objectionable or which restricts or inhibits any other person from using or enjoying our Website, or which may expose Activiter, our affiliates, or our Users to any harm or liability of any type.

2. use our Content to:

o   develop a competing Website or help anyone else to do the same.

o   create compilations or derivative works as defined under copyright laws.

o   re-distribute it in any manner, including, but not limited to, sale, license, lease, rental, subscription, or any other distribution mechanism.

o   decompile, disassemble or reverse engineer our Website and any related Website.

o   use our Website in any manner that violates our Legal Terms or any local, state, federal, or international laws.

3. use your account to:

o   allow another person to login as you.

o   violate any local, state, federal, or international laws.

Intellectual Property

Our Website may contain our trademarks as well as those of Providers, our affiliates, and other companies, in the form of words, graphics, and logos. Your use of our Website does not constitute any right or license for you to use such trademark, without the prior written permission of the corresponding trademark owner. Our Website is also protected under international copyrights. The copying, redistribution, use or publication by you of any portion of our Website is strictly prohibited. Your use of our Website does not grant you ownership rights of any kind in our Content or Website. As mentioned, we do not claim ownership of your Member Content, but by providing it to our Website, you do not receive any other rights in our Content other than what belongs to you already.

Linking to Our Website

You may provide links to our Website, provided (a) that you do not remove or obscure, by framing or otherwise, any portion of our Website, (b) your Website does not engage in illegal or immoral activities, and (c) you discontinue providing links to our Website immediately upon request by us.

Links to Other Websites

Our Website may contain links to third party websites (“Third Party Websites”). These links are provided solely as a convenience to you. By linking to these Third Party Websites, we do not create or have an affiliation with, or sponsor such Third Party Websites. The inclusion of links within our Website does not constitute any endorsement, guarantee, warranty, or recommendation of such Third Party Websites. Activiter has no control over the legal documents and privacy practices of third party websites; as such, you access any such Third Party Websites at your own risk.

Warranty Disclaimer

Activiter reserves the right to change any and all Content and features of our Website, at any time without notice. Our Website may be temporarily unavailable from time to time for maintenance or other reasons. Activiter assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, Member Content. Activiter is not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers, computer or mobile phone equipment, Website, failure of email or players on account of technical problems or traffic congestion on the Internet or any combination thereof, including injury or damage to anyone’s computer, mobile phone, or other hardware or Website, related to or resulting from using, uploading, or downloading materials in connection with our Website. Under no circumstances will Activiter be responsible for any loss or damage, including any loss or damage or personal injury or death, resulting from anyone’s use of our Website, or for any interactions between Users of our Website, whether online or offline.

OUR WEBSITE IS PROVIDED “AS-IS,” “AS AVAILABLE,” WITH “ALL FAULTS”, AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED (INCLUDING BUT NOT LIMITED TO THE DISCLAIMER OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). OUR WEBSITE MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. ACTIVTER, INCLUDING ALL OUR AFFILIATES, HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF OUR WEBSITE, OTHER THAN AS SPECIFIED IN OUR LEGAL TERMS. ACTIVTER CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF OUR WEBSITE. ACTIVTER DOES NOT REPRESENT OR WARRANT THAT OUR WEBSITE IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT IT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEREFORE, YOU SHOULD EXERCISE CAUTION IN THE USE AND DOWNLOADING OF ANY SUCH CONTENT AND USE INDUSTRY-RECOGNIZED PROGRAMS TO DETECT AND REMOVE VIRUSES. ALL RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES CAUSED BY VIRUSES SOMEHOW ATTRIBUTED TO OUR WEBSITE IS DISCLAIMED. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT YOU USE OUR WEBSITE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR YOUR USE THEREOF AND ANY DAMAGES TO YOU, YOUR MOBILE DEVICE OR COMPUTER SYSTEM, OR OTHER HARM OF ANY KIND THAT MAY RESULT. WE, AS WELL AS ALL OF OUR AFFILIATES, ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF INCOME, BUSINESS, PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION AND LIMITATION OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND ACTIVTER. OUR WEBSITE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH OUR WEBSITE SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN OUR LEGAL TERMS.

Limitation of Liability

Activiter, as well as all our affiliates, shall not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from (a) any errors in or omissions from our Website; (b) the unavailability or interruption of our Website; (c) your use of our Website; or (d) any delay or failure in performance of our Website.

ACTIVITER AND ITS AFFILIATES ARE NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM. ACTIVTER AND ITS AFFILIATES HAVE NO LIABILITY AND WILL MAKE NO WARRANTY, REFUND, OR OTHER RESTITUTION TO YOU WITH REGARDS TO OUR WEBSITE, OTHER THAN AS SPECIFIED HEREIN, FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, DELAYS, CANCELLATIONS, STRIKES, GOVERNMENTAL ISSUES, OR FORCE MAJEURE.

IN NO EVENT WILL ACTIVITER OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOSSES ARISING FROM YOUR USE OF OUR WEBSITE, EVEN IF TOURLANDISH IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, ACTIVTER’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO YOUR CEASING USE OF OUR WEBSITE.

Fees

If at some point you pay to use our Website, you represent and warrant that when you make any payments to Activiter for such use:

·      You agree to pay the fees at our then-current prices as posted on our website, including any applicable taxes

·      You agree to provide true and complete credit information;

·      You agree that fee will be honored by your bank or credit card company; AND

·      You agree that if your initial payment method is dishonored, you will still pay the charges incurred, including any surcharge we may incur due to such dishonored payment.

All purchases and reservations made on Activiter are final and non-refundable. In the event of a cancelation or request for modification of the reservation, Activiter and the service providers are not obliged to honor such requests and the entire amount paid is forfeited by the customer.

Refunds, if any, are provided at the sole discretion of Activiter and the service providers.

Use of Information

We reserve the right, and you authorize us, to the use and assignment of all of your Profile information and usage information regarding our Website in any manner consistent with our Privacy Policy. All remarks, suggestions, ideas, graphics, or other information communicated by you to us (collectively, “Submission”) are considered our property. To the extent that such Submission contains copyrighted, either owned by you or licensed to you, you grant Activiter a perpetual, irrevocable, royalty-free, worldwide license to use such Submission as we see fit, in any form whether on our Website or elsewhere. We will not be required to treat any Submission as confidential, and will not be liable for any ideas (including without limitation, product, service or advertising ideas) and will not incur any liability as a result of any similarities that may appear in our Service or other operations. Without limitation, we will have exclusive ownership of all present and future existing rights to the Submission of every kind and nature everywhere. We will be entitled to use the Submission for any commercial or other purpose whatsoever, without compensation to you or any other person sending the Submission. You acknowledge that you are responsible for whatever material you submit, and you, not us, have full responsibility for the message, including its legality, reliability, appropriateness, originality, and copyright.

Indemnification

You agree to indemnify, defend and hold harmless Activiter and our partners, agents, officers, directors, employees, subcontractors, successors, assigns, third party suppliers, attorneys, advertisers, and affiliates, from any liability, loss, claim and expense, including reasonable attorney’s fees, related to your violation of our Legal Terms or your use of our Website.


Termination of Your Account

You acknowledge that if you violate the terms of our Legal Terms, Activiter reserves the right to terminate your account without notice. You may also voluntarily terminate your account. You understand that if your account is terminated, you will lose access to our Website and any Member Content you have provided. You understand that we are not required to provide you with copies of such Member Content nor continue to maintain copies of such Member Content on our Website.


Arbitration

Any legal controversy or legal claim arising out of or relating to our Legal Terms and/or our Website, excluding legal action taken by us to collect or recover damages for, or obtain any injunction relating to intellectual property infringement, shall be settled solely by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted before an arbitrator selected by the American Arbitration Association in Honolulu, HI, USA. The judgment of such arbitrator on award may be entered into any court having jurisdiction thereof. We may seek any interim or preliminary relief from a court of competent jurisdiction within state and federal courts of the State of New York as, necessary to protect the rights or property of you and us pending the completion of arbitration. Each party shall bear one-half of the arbitration fees and costs, but the prevailing party may seek return of such arbitration fees and reasonable attorney fees.


General Terms

Our Legal Terms shall be treated as though it were executed and performed in Honolulu, HI, USA, and shall be governed by and construed in accordance with the laws of the State of Hawaii, USA, without regard to conflict of law principles. In addition, you agree to submit to the personal jurisdiction and venue of such courts. Any cause of action by you with respect to our Website, must be instituted within one (1) year after the cause of action arose or be forever waived and barred. Should any part of our Legal Terms be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that any Content in our Website conflicts or is inconsistent with our Legal Terms, our Legal Terms shall take precedence. Our failure to enforce any provision of our Legal Terms shall not be deemed a waiver of such provision nor of the right to enforce such provision. The rights of Activiter under our Legal Terms shall survive the termination of our Legal Terms.