BY USING THE WEBSITE OR SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD AND ARE OTHERWISE LEGALLY QUALIFIED TO ENTER INTO AND FORM CONTRACTS UNDER APPLICABLE LAW. Any individual using the Website or Services on behalf of a company further represents and warrants that they are authorized to act and enter into contracts on behalf of that company. This Agreement is void where prohibited.
5. LICENSE; NO COPYING HAIWAI CONTENT;
(a) Limited License
Subject to Your compliance with the terms and conditions of this Agreement, HaiWai grants You a non-exclusive, non-sublicensable, revocable as stated in this Agreement, non-transferable license to use the Website and Services. For clarification purposes, this single license is for You to view and download a single copy of the select content you manually access, solely for lawful, non-commercial, and personal use by You and only as expressly permitted by and subject to the conditions and restrictions in this Agreement. You agree that cached copies in mobile or desktop devices, or computer servers, are "copies" of HaiWai's Website under the United States Copyright Act, 17 U.S.C. §§ 101 et seq.
(b) Unlicensed Misconduct: No Copying HaiWai Content
The license granted in the subsection above is conditioned on Your compliance with each and all of the terms and conditions of this Agreement. Your rights under the above subsection will immediately terminate in the event that You breach, actually or potentially in the sole judgment of HaiWai, any provision of this Agreement. All rights not expressly granted herein are reserved by HaiWai.
The Website, or any portion of the Website, including HaiWai Content may not be reproduced, duplicated, copied, displayed, modified, sold, resold, distributed, transmitted, or otherwise exploited for any commercial purpose without the express written consent of HaiWai. If you access the Website or reproduce, duplicate, copy, display, modify, sell, resell, distribute, transmit, or otherwise exploit the Website, or any portion thereof, or other HaiWai intellectual property, including without limitation HaiWai's registered trademarks or any HaiWai Content, your access and other conduct is expressly unauthorized and subjects your limited license to immediate and final termination.
YOU MAY NOT USE SCRAPING BOTS TO ACCESS THIS WEBSITE OR COPY ANY OF ITS CONTENTS.
Without limitation, this Agreement grants You no rights in or to the intellectual property of HaiWai or any other party, except as expressly set forth herein. For additional information, please see Section 17 regarding "Prohibited Uses" and see Section 24 regarding "Termination."
(c) YOU ARE ON NOTICE: NO UNFAIR COMPETITION WITH HAIWAI
You hereby promise and agree not ever to reproduce any HaiWai Content that You access through the Website and/or Services in order to unfairly compete or obtain unfair advantage vis-a-vis HaiWai in any commercial activity which may be comparable to the commercial activity of HaiWai, including without limitation, the commercial operation of a mobile application. You hereby agree that this noncompetition provision, including its duration, scope and geographic extent, is fair and reasonably necessary to protect HaiWai's business relationships, goodwill, confidential information and other protectable interests. You also hereby agree that you have complete legal and actual notice that any commercial use of HaiWai Content that is not expressly authorized in a written licensing agreement violates HaiWai's rights.
(d) LIQUIDATED DAMAGES FOR UNFAIR COMPETITION VIOLATION
In the event that You violate any exclusive right belonging to HaiWai pursuant to this section, including without limitation by reproducing the HaiWai Content to obtain a commercial advantage over HaiWai, by engaging in any act or acts other than any act that a Court of Competent Jurisdiction subsequently finds to constitute a violation other than the HaiWai's legal rights under 17 U.S.C. §§201 et seq., or the legal equivalent thereof, you agree to fully and immediately compensate HaiWai for liquidated damages in the amount of $5,000 per instance of breach, in addition to court costs, litigation costs and related costs, expenses, attorney's fees, collection costs, and enforcement costs of any and all judgments against You, and all costs, fees, and expenses arising from HaiWai's investigation and/or resolution of the matter. If You fail to compensate HaiWai for any such claim, you hereby agree and authorize HaiWai to report Your Personal Information, including without limitation Your unpaid claim, to consumer credit reporting services, collection agencies, and others.
6. NO RELIANCE ON THIRD-PARTY CONTENT
The information on the Website is provided for entertainment purposes only. Opinions, advice, statements, or other information made available by means of the Website and Services by third-parties, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. HaiWai does not: (i) guarantee the accuracy, completeness, or usefulness of any third-party information accessible on or through the Website; or (ii) adopt, endorse, or accept responsibility for the accuracy or reliability of any opinion, advice or statement made by a third-party by means of the Website and Services. Under no circumstances will HaiWai be responsible for any loss or damage resulting from your reliance on information or other content posted on the Website or transmitted to or by any third-party.
7. ASSUMPTION OF RISK; RELEASE
YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE WEBSITE AND SERVICES. YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES, AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND, AND INDEMNIFY HAIWAI AND ITS STOCKHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, CONSULTANTS, REPRESENTATIVES, SUBLICENSEES, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE "HAIWAI PARTIES") FROM ANY AND ALL CLAIMS, ACTIONS, OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF PRIVACY, OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, THAT MAY RESULT FROM YOUR USE OF THE WEBSITE AND SERVICES.
8. USER INFORMATION; PASSWORD PROTECTION
(a) User Information
To access the Website and use the Services, You may be asked to provide certain registration details or other information. You represent and warrant that all user information You provide in connection with Your use of the Website and Services will be current, complete, and accurate, and that You will update that information as necessary to maintain its completeness and accuracy.
(b) Password; Your Duty to Protect Access Credentials
You may also be asked to provide a user name and password in connection with Your use of certain of the Services.
YOU MAY NOT USE YOUR USERNAME OR PASSWORD TO ACCESS THE WEBSITE OR SERVICES BY VISITING, NAVIGATING TO, OR VIEWING ANY HAIWAI CONTENT THROUGH ANY WEB ADDRESS OTHER THAN
You are entirely responsible for maintaining the confidentiality of Your password. You may not use the account, user name, or password of any other member at any time. You agree to notify HaiWai immediately of any unauthorized use of Your account, user name, or password. HaiWai shall not be liable for any loss that You incur as a result of someone else using Your password, either with or without Your knowledge. You may be held liable for any losses incurred by HaiWai, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else's use of Your account or password.
9. YOUR INTERACTIONS WITH OTHER MEMBERS
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER HAIWAI USERS. YOU ACKNOWLEDGE AND UNDERSTAND THAT HAIWAI HAS NOT, AND DOES NOT, IN ANY WAY GUARANTEE THAT IT WILL: (A) SCREEN ITS MEMBERS; (B) INQUIRE INTO THE BACKGROUNDS OF ITS MEMBERS; OR (C) REVIEW OR VERIFY THE STATEMENTS OF ITS MEMBERS. YOU HEREBY AGREE TO EXERCISE REASONABLE PRECAUTION IN ALL INTERACTIONS WITH OTHER MEMBERS, PARTICULARLY IF YOU DECIDE TO MEET ANOTHER MEMBER IN PERSON. HAIWAI DOES NOT REPRESENT, WARRANT, ENDORSE OR GUARANTEE THE CONDUCT OF ITS MEMBERS. IN NO EVENT SHALL HAIWAI BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO ANY MEMBER'S CONDUCT IN CONNECTION WITH SUCH MEMBER'S USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF PRIVACY OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS BETWEEN MEMBERS.
10. CONSENT TO RECEIVE ELECTRONIC COMMUNICATIONS FROM HAIWAI
Without limitation, by providing your contact name, email, mailing address, or zip code and/or phone number to the Website, you hereby consent to receive electronic communications, over the short term and periodically, including email and short-message service ("SMS" or "text message") communications from HaiWai regarding the Services, new product offers, promotions, and other matters. You may opt-out of receiving electronic communications at any time by (a) following the unsubscribe instructions contained in each communication; or (b) sending an email to INFO at HaiWai dot com.
11. RESERVED RIGHTS FOR HAIWAI FEES
You acknowledge and agree that HaiWai reserves the right to charge for access to the Website and use of the Services. HAIWAI RESERVES THE RIGHT, IN HAIWAI'S SOLE DISCRETION, TO CHANGE THE FEES AND CHARGES IN EFFECT, OR TO ADD NEW FEES AND CHARGES, BY POSTING SUCH CHANGES ON THE WEBSITE OR PROVIDING NOTICE TO YOU. ALL FEES AND CHARGES ARE NONREFUNDABLE, AND THERE ARE NO REFUNDS, AND THERE ARE NO CREDITS FOR PARTIALLY USED MEMBERSHIP PERIODS. HaiWai's decision not to exercise any specific right or require performance of any specific obligation under this Agreement, including without limitation the collection of regularly recurring fees from You, shall not affect HaiWai's subsequent ability to exercise such right or require such performance at any time thereafter. Nor shall HaiWai's waiver of Your breach constitute HaiWai's waiver of any subsequent breach. By opting for membership or paid services, You authorize HaiWai, and/or its payment processor, to charge these fees to the credit card, debit card, or other payment method You provide, in addition to applicable sales taxes and other taxes.
12. THIRD-PARTY WEBSITES
The Website is linked with the websites of third parties ("Third-Party Websites"), some of whom may have established relationships with HaiWai and some of whom may not. HaiWai does not have control over the content and performance of Third-Party Websites. HaiWai has not reviewed, and cannot review or control, all of the material, including computer software or other goods or services, made available on or through third-party websites. Accordingly, HaiWai does not represent, warrant, or endorse any third-party website, or the accuracy, currency, content, fitness, lawfulness, or quality of the information, material, goods, or services available through third-party websites. HaiWai disclaims, and you agree to assume, all responsibility and liability for any damages or other harm, whether to you or to third parties, resulting from your use of third-party websites.
13. USER CONTENT
"User Content" is any content, material, or information, not including personally identifiable information (e.g., first and last name, address, phone number, email address, etc.), that You submit, upload, and/or post to, or transmit, display, perform, or distribute by means of, the Website, whether in connection with Your use of Services or otherwise. BY SUBMITTING, UPLOADING, OR POSTING USER CONTENT IN AN FORM WITH, THROUGH, OR TO THE WEBSITE, YOU THEREBY GRANT AND ASSIGN THE HAIWAI PARTIES, (AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT TO GRANT AND ASSIGN) PERPETUALLY, IRREVOABLY, AND UNLIMITEDLY, ALL RIGHT, TITLE, AND INTEREST TO THE FULL, WORLDWIDE COPYRIGHT TO, AND ALL OTHER RIGHTS TO, THE USER CONTENT TO THE HAIWAI PARTIES, INCLUDING A ROYALTY-FREE, PERPETUAL, FULLY PAID-UP, IRREVOCABLE, UNLIMITED, FULLY PAID, FULLY SUB-LICENSABLE (THROUGH MULTIPLE TIERS), WORLDWIDE, EXCLUSIVE RIGHT TO COPY, PERFORM, DISPLAY, DISTRIBUTE, REPRODUCE, MODIFY, ADAPT, TRANSLATE, REFORMAT, ENHANCE, TRANSMIT, PREPARE DERIVATIVE WORKS FROM (INCLUDING, WITHOUT LIMITATION, INCORPORATING INTO OTHER WORKS) AND/OR OTHERWISE USE IN CONNECTION WITH THE OPERATION OF THE WEBSITE, SERVICES, OR ANY OTHER SIMILAR OR RELATED BUSINESS, IN ANY MEDIUM NOW EXISTING OR LATER DEVISED, WHICH ALSO INCLUDES A GRANT TO THE HAIWAI PARTIES OF THE EXCLUSIVE RIGHT TO ENFORCE COPYRIGHTS AGAINST ANYONE COPYING, REPUBLISHING, DISTRIBUTING OR PREPARING DERIVATIVE WORKS WITHOUT HAIWAI'S CONSENT. YOU AGREE TO WAIVE, AND HEREBY WAIVE, ANY CLAIMS ARISING FROM OR RELATING TO THE EXERCISE BY THE HAIWAI PARTIES OF THE RIGHTS GRANTED UNDER THIS SECTION, INCLUDING WITHOUT LIMITATION ANY CLAIMS RELATING TO YOUR RIGHTS OF PERSONAL PRIVACY AND PUBLICITY. YOU WILL NOT BE COMPENSATED FOR ANY EXERCISE OF THE LICENSE GRANTED UNDER THIS SECTION. YOU EXPRESSLY GRANT AND ASSIGN THE HAIWAI PARTIES ALL EXCLUSIVE RIGHTS AND CAUSES OF ACTION TO ENFORCE THE PROHIBITION UNDER THE U.S. COPYRIGHT ACT AGAINST UNAUTHORIZED THIRD PARTY ACT THAT COPIES, PERFORMS, DISPLAYS, DISTRIBUTES, REPRODUCES, MODIFIES, ADAPTS, TRANSLATES, REFORMATS, ENHANCES, TRANSMITS, OR PREPARES DERIVATIVE WORKS FROM ANY USER CONTENT THAT YOU SUBMIT, UPLOAD, OR POST WITH, THROUGH, OR TO THE WEBSITE, INCLUDING WITHOUT LIMITATION ANY SPIDERS, ROBOTS THAT COPY, AGGREGATE, HARVEST OR OTHERWISE COLLECT HAIWAI CONTENT.
You hereby represent and warrant that You: (a) own all rights, title and interest in and to any and all User Content You submit, or are otherwise authorized to grant the rights provided the HaiWai Parties under this section, (b) have written consent, release, and/or permission of each and every identifiable individual person in any User Content You submit to use the name and likeness of each and every such identifiable person in the User Content; and (c) will not submit any User Content that does not fully comply with HaiWai's prohibitions against "Objectionable Content," as detailed in Section 16.
HaiWai reserves the right, in its sole discretion, to reject any User Content for any reason. "Objectionable Content" listed in Section 17 and "Prohibited Uses" in Section 18 are not exhaustive lists of content that HaiWai reserves the right to remove or deny.
14. PUBLIC FORUMS
"Public Forum" is any area, site or feature offered as part of the Website (including without limitation blogs, bbs, article, picture, photo and video sharing, and personal messaging features) that enables You (a) to upload, submit, post, display, perform, distribute, and/or view User Content, and/or (b) to communicate, share, or exchange User Content with other Website members or other Website visitors. You acknowledge that Public Forums, and features contained therein, are for public and not private communications. You further acknowledge that anything You upload, submit, post, transmit, communicate, share, or exchange by means of any Public Forum may be viewed on the Internet by the general public, and therefore, You have no expectation of privacy with regard to any such submission or posting. You are, and shall remain, solely responsible for the User Content you upload, submit, post, transmit, communicate, share, or exchange by means of any Public Forum and for the consequences of submitting or posting same. HaiWai disclaims any perceived, implied, or actual duty to monitor Public Forums and specifically disclaims any responsibility or liability for information provided thereon.
15. YOUR RESPONSIBILITY FOR DEFAMATORY COMMENTS
You agree and understand that you may be held legally responsible for damages suffered by other Website members or third-parties as the result of Your remarks, information, feedback, or other content posted or made available on the Website that is deemed defamatory or otherwise legally actionable. Under the Federal Communications Decency Act of 1996, HaiWai is not legally responsible, nor can it be held liable for damages of any kind, arising out of or in connection to any defamatory or otherwise legally actionable remarks, information, feedback, or other content posted or made available on the Website.
16. OBJECTIONABLE CONTENT
HaiWai disclaims any perceived, implied, or actual duty to monitor the contents of the Website and specifically disclaims any responsibility or liability for information provided hereon. Without limiting any of its other remedies, HaiWai reserves the right to terminate Your use of the Website and Services or Your uploading, posting, transmission, display, performance or distribution of Objectionable Content. HaiWai, in its sole discretion, may delete any Objectionable Content from its servers. HaiWai intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of this Agreement or of any applicable laws.
17. PROHIBITED USES
HaiWai imposes certain restrictions on Your use of the Website and the Services. You represent and warrant that you will not engage in any of the following uses, which are expressly prohibited under this Agreement: (a) use or attempt to use any spiders, robots, crawlers, avatars, fake profiles, scrapers, engines, software, tools, agents, or other device or technological mechanism to copy, aggregate, harvest or otherwise collect HaiWai Content, including text, photos, videos, or any other original content published on HaiWai in any expressive digital format or medium, from the Website, for any use, including without limitation display, distribution, performance, or derivative use on third-party websites or through third-party mobile applications, either directly or through intermediaries; (b) attempt to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the HaiWai Parties in providing the Website or Services, including the official HaiWai mobile application; (c) "stalk" or otherwise harass any person, or contact any person who has requested not to be contacted; (d) provide false, misleading or inaccurate information to HaiWai or any other member; (e) impersonate, or otherwise misrepresent affiliation, connection or association with, any person or entity; (f) while, using the Website and Services, use "ad blocking" software or similar built-in web browser options designed to hide, block or prevent the proper display of online advertising; (g) modify or change the placement and location of any advertisement appearing on the Website; (h) harvest or otherwise collect information about HaiWai users, including email addresses and phone numbers; (i) access content or data not intended for You, or log onto a server or account that You are not authorized to access; (j) attempt to probe, scan, or test the vulnerability of the Services, the Website, or any associated system or network, or breach security or authentication measures without proper authorization; (k) interfere or attempt to interfere with the use of the Website or Services by any other user, host, or network, including, without limitation by means of submitting a virus, overloading, "flooding," "spamming," "mail bombing," or "crashing"; (l) use the Website or Services to send unsolicited e-mail, including without limitation promotions or advertisements for products or services; or (m) forge any TCP/IP packet header or any part of the header information in any e-mail or in any uploading or posting to, or transmission, display, performance or distribution by means of, the Website or Services. Any violation of this section may subject You to civil and/or criminal liability.
18. HAIWAI INTELLECTUAL PROPERTY; DAMAGES
You represent and warrant that, when using the Website and Services, You will obey the law and respect the intellectual property rights of HaiWai.
(a) HaiWai Trademarks
"HAIWAI" and the HaiWai logo (collectively, the "HaiWai Marks") are trademarks or registered trademarks of GateChina, Inc.. Other trademarks, service marks, graphics, logos, and domain names appearing on the Website may be the trademarks of third-parties. Neither Your use of the Website and Services nor this Agreement grant You any right, title or interest in or to, or any license to reproduce or otherwise use, the HaiWai Marks or any third-party trademarks, service marks, graphics, logos, or domain names. You agree that any goodwill in the HaiWai Marks generated as a result of Your use of the Website and Services will inure to the benefit of GateChina, Inc., and You agree to assign, and hereby do assign, all such goodwill to GateChina, Inc.. You shall not at any time, nor shall You assist others to, challenge GateChina, Inc.'s right, title, or interest in or to, or the validity of, the HaiWai Marks.
(b) HaiWai Content
The information, material, and content submitted, uploaded, or posted to, without, or through HaiWai ("HaiWai Content"), including without limitation User Content, is protected and registered under the United States Copyright Act. You hereby represent and warrant receiving and comprehending reasonable notice under 17 U.S.C. §401 that the Website and all HaiWai Content is protected and registered under the United States Copyright Act © 1998 – 2013 by GateChina, Incorporated. You also hereby represent and warrant that you will not copy, aggregate, harvest or otherwise collect HaiWai Content, including text, photos, videos, or any other original content published on HaiWai in any expressive digital format or medium, from the Website, for any use that violates the United States Copyright Act, including without limitation display, distribution, performance, or derivative use on third-party websites or through third-party mobile applications, either directly or through intermediaries.
19. THIRD PARTY INTELLECTUAL PROPERTY
(a) Compliance with Law
You represent and warrant that, when using the Website and Services, You will obey the law and respect the intellectual property rights of all parties, including third-parties not expressly party to this Agreement. Your use of the Website and Services is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property generally. You agree not to upload, post, transmit, display, perform, or distribute any content, information or other materials in violation of any third-party's copyrights, trademarks, or other intellectual property or proprietary rights. YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE THE SOLE AND EXCLUSIVE OWNER OF ANY USER CONTENT THAT YOU SUBMIT TO THE WEBSITE. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY VIOLATIONS OF ANY LAWS AND FOR ANY INFRINGEMENTS OF THIRD-PARTY RIGHTS CAUSED BY YOUR USE OF THE WEBSITE AND SERVICES. COMPANY BEARS THE SOLE BURDEN OF PROVING THAT CONTENT, INFORMATION OR OTHER MATERIALS DO NOT VIOLATE ANY LAWS OR THIRD-PARTY RIGHTS.
(b) Copyrighted Materials; Copyright Notice
All content and other materials available through the Website and Services, including without limitation the HaiWai logo, design, text, graphics, and other files, and the selection, arrangement, and organization thereof, are either owned by GateChina, Inc. or are the property of GateChina, Inc.'s licensors and suppliers. Except as explicitly provided, neither Your use of the Website and Services nor this Agreement grant You any right, title, or interest in or to any such materials.
(c) DMCA Policy
As HaiWai asks others to respect HaiWai's intellectual property rights, HaiWai respects the intellectual property rights of others. If you believe content located on or linked-to by the Website violates Your copyright, you are encouraged to please immediately notify HaiWai by means of emailed notice ("Infringement Notice"), providing the information described herein. If HaiWai takes action in response to an Infringement Notice, it will make a good faith attempt to contact the party that made such content available by means of the most recent email address, if any, provided by such party to HaiWai. Please be advised that you may be held liable for damages based on certain material misrepresentations contained in an Infringement Notice. Thus, if you are not sure content located on or linked-to by the Website infringes your copyright, you should consider first contacting an attorney.
All Infringement Notices should include the following:
A signature, electronic or physical, of the copyright owner or a person authorized to act on their behalf;
An identification of the copyright claimed to have been infringed;
A description of the nature and location of the material that you claim to infringe your copyright, in sufficient detail to permit HaiWai to find and positively identify that material;
Your name, address, telephone number and email address; and
A statement by you: (i) that you believe in good faith that the use of the material that you claim to infringe your copyright is not authorized by law, or by the copyright owner or such owner's agent; and, (ii) under penalty of perjury, that all of the information contained in your Infringement Notice is accurate, and that you are either the copyright owner or a person authorized to act on their behalf. Infringement Notices should be sent to DMCA at HaiWai dot com with the subject line "DMCA Notice – [INSERT YOUR NAME OR YOUR COMPANY'S NAME]".
HaiWai will respond to all such notices, including as required or appropriate by removing the offending material or disabling all links to the offending material.
20. DISCLAIMERS; LIMITATION OF LIABILITY
(a) NO WARRANTIES.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, HAIWAI, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE WEBSITE, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NO ENCUMBRANCE, OR TITLE, IN ADDITION TO ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NEITHER HAIWAI NOR ITS LICENSORS OR SUPPLIERS WARRANTS THAT THE WEBSITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE WEBSITE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE LIABILITY OF HAIWAI FOR DAMAGES ARISING OUT OF THE FURNISHING OF SERVICES PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, TORTIOUS CONDUCT, ERRORS, OR OTHER DEFECTS, REPRESENTATIONS, OR ARISING OUT OF THE FAILURE TO THE FURNISH SERVICES, WHETHER CAUSED BY ACTS OF COMMISSION OR OMISSION, OR ANY OTHER DAMAGE OCCURRING, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. HAIWAI SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR LOST REVENUES), WHETHER CAUSED BY THE ACTS OR OMISSIONS OF HAIWAI, HAIWAI PARTIES, OR HAIWAI USERS, OR THEIR AGENTS OR REPRESENTATIVES.
(b) YOUR RESPONSIBILITY FOR LOSS OR DAMAGE; BACKUP OF DATA
YOU AGREE THAT YOUR USE OF THE WEBSITE AND SERVICES IS AT YOUR SOLE RISK. YOU WILL NOT HOLD HAIWAI OR ITS LICENSORS AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE WEBSITE, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO ANY OF YOUR COMPUTERS OR DATA. THE INFORMATION AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS, OR OTHER LIMITATIONS.
IMPORTANTLY, YOU HEREBY ACKNOWLEDGE THAT A CATASTROPHIC DISK FAILURE OR OTHER EVENT COULD RESULT IN THE LOSS OF ALL OF THE DATA RELATED TO YOUR ACCOUNT. YOU AGREE AND UNDERSTAND THAT IT IS YOUR RESPONSIBILITY TO BACKUP YOUR DATA TO YOUR PERSONAL COMPUTER OR EXTERNAL STORAGE DEVICE AND TO ENSURE SUCH BACKUPS ARE SECURE.
(c) LIMITATION OF LIABILITY
THE LIABILITY OF HAIWAI AND ITS LICENSORS AND SUPPLIERS IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN NO EVENT SHALL HAIWAI OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO HAIWAI OR ITS LICENSORS AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE WEBSITE OR SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, THE MAXIMUM LIABILITY OF HAIWAI AND ITS LICENSORS AND SUPPLIERS TO YOU UNDER ALL CIRCUMSTANCES SHALL BE $50.00. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN HAIWAI AND YOU. THE WEBSITE AND SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS DO NOT IN ANY WAY LIMIT ANY OTHER DISCLAIMER OF WARRANTIES OR ANY OTHER LIMITATION OF LIABILITY IN ANY OTHER AGREEMENT BETWEEN YOU AND HAIWAI OR BETWEEN YOU AND ANY OF HAIWAI'S LICENSORS AND SUPPLIERS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS, AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. HAIWAI'S LICENSORS AND SUPPLIERS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS, WAIVERS, AND LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE WEBSITE OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS OR LIMITATIONS STATED IN THIS SECTION.
21. YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant that Your use of the Website and Services will be in accordance with this Agreement and any other HaiWai policies, and with any applicable laws or regulations.
22. INDEMNITY BY YOU
Without limiting any indemnification provision of this Agreement, You (the "Indemnitor") agree to defend, indemnify and hold harmless HaiWai and the HaiWai Parties (collectively, the "Indeminitees") from and against any and all claims, actions, demands, causes of action, and other proceedings (collectively, "Claims"), including but not limited to legal costs and fees, and providing sole and exclusive control of the defense of any action to HaiWai, including the choice of legal counsel and all related settlement negotiations, arising out of or relating to: (i) the relationship between You and HaiWai, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; (ii) Your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (iii) Your access to or use of the Website or Services; (iv) Your provision to HaiWai or any of the Indemnitees of information or other data; or (v) Your violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; or (vi) Your violation or alleged violation of any third party's copyrights, trademarks, or other intellectual property or proprietary rights.
The Indemnitees each have the individual right, but not the obligation, to participate through counsel of their choice in any defense by You of any Claim as to which You are required to defend, indemnify, or hold harmless any, each, and/or all Indeminitees. You may not settle any Claim without the prior written consent of the concerned Indemnified Parties.
23. GOVERNING LAW; JURISDICTION AND VENUE
(a) 1-Year Limitations Period
ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE WEBSITE, SERVICES, OR THIS AGREEMENT MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN ABOVE.
(b) Restrictions Against Joinder of Claims
You and HaiWai agree that any arbitration shall be limited to each Claim individually. YOU AND HAIWAI HEREBY AGREE THAT EACH MAY ONLY BRING CLAIMS AGAINST THE OTHER IN YOUR OR HAIWAI'S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
(c) Laws of the State of California
This Agreement, including without limitation this Agreement's interpretation, shall be treated as though this Agreement were executed and performed in the State of California and shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law principles. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party. THE PROPER VENUE FOR ANY JUDICIAL ACTION ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT WILL BE THE STATE AND FEDERAL COURTS LOCATED IN OR NEAREST TO FREMONT, CALIFORNIA. THE PARTIES HEREBY STIPULATE TO, AND AGREE TO WAIVE ANY OBJECTION TO, THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS, AND FURTHER EXPRESSLY SUBMIT TO EXTRATERRITORIAL SERVICE OF PROCESS.
(a) BY HAIWAI
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, HAIWAI RESERVES THE RIGHT TO, IN HAIWAI'S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY USE OF THE WEBSITE AND/OR SERVICES TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR ANY BREACH OR SUSPECTED BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION.
(b) AUTOMATIC TERMINATION UPON BREACH BY YOU
This Agreement shall automatically terminate in the event that You breach any of this Agreement's representations, warranties, or covenants. Such termination shall be automatic, and shall not require any action by HaiWai.
(c) BY YOU
You may terminate this Agreement and Your rights hereunder at any time, for any or no reason at all, by providing to HaiWai notice of Your intention to do so, in the manner required by this Agreement.
(d)EFFECT OF TERMINATION
Any termination of this Agreement automatically terminates all rights and licenses granted to You under this Agreement, including all rights to use the Website and Services. Upon termination, HaiWai may, but has no obligation to, in HaiWai's sole discretion, rescind any services and/or delete from HaiWai's systems all Your Personal Information and any other files or information that You made available to HaiWai or that otherwise relate to Your use of the Website or Services. Upon termination, You shall cease any use of the Website and Services. Subsequent to termination, HaiWai reserves the right to exercise whatever means it deems necessary to prevent Your unauthorized use of the Website and Services, including without limitation technological barriers such as IP blocking and direct contact with Your Internet Service Provider.
(e) LEGAL ACTION
If HaiWai, in HaiWai's discretion, takes legal action against You in connection with any actual or suspected breach of this Agreement, HaiWai will be entitled to recover from You as part of such legal action, and You agree to pay, HaiWai's reasonable costs and attorneys' fees incurred as a result of such legal action. The HaiWai Parties will have no legal obligation or other liability to You or to any third party arising out of or relating to any termination of this Agreement.
Upon termination, all rights and obligations created by this Agreement will terminate, except that Sections 1, 2, 4, 5(b), 6-9, and 11-27 will survive any termination of this Agreement.
All notices required or permitted to be given under this Agreement must be in writing. HaiWai shall give any notice by email sent to the most recent email address, if any, provided by the intended recipient to HaiWai. You agree that any notice received from HaiWai electronically satisfies any legal requirement that such notice be in writing. YOU BEAR THE SOLE RESPONSIBILITY OF ENSURING THAT YOUR EMAIL ADDRESS ON FILE WITH HAIWAI IS ACCURATE AND CURRENT, AND NOTICE TO YOU SHALL BE DEEMED EFFECTIVE UPON THE SENDING BY HAIWAI OF AN EMAIL TO THAT ADDRESS. You shall give any notice to HaiWai by means of email to INFO at HaiWai dot com.
26. PARTIAL INVALIDITY
Should any part of this Agreement be declared invalid, void, or unenforceable by a Court of Competent Jurisdiction, such decision shall not affect the validity of any remaining portion hereof, which shall remain in full force and effect, and the parties hereby acknowledge and agree that they would have executed the remaining portion hereof without including the part so declared by a Court of Competent Jurisdiction, to be invalid, void, or unenforceable.
This Agreement constitutes the entire agreement between HaiWai and You concerning Your use of the Website and Services. This Agreement may only be modified by a written amendment signed by an authorized executive of HaiWai or by the unilateral amendment of this Agreement by HaiWai and by the posting by HaiWai of such amended version. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. This Agreement and all of Your rights and obligations hereunder will not be assignable or transferable by You without the prior written consent of HaiWai. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns. You and HaiWai are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Except for the HaiWai Parties and the Indemnified Parties as and to the extent set forth in Sections 7, 13, 20(a), 22, and 24(e), and in this paragraph, and HaiWai's licensors and suppliers as to the extent expressly stated in this Agreement, there are no third-party beneficiaries to this Agreement. You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third-party rights by You would cause irreparable injury to HaiWai and HaiWai's licensors and suppliers, and would therefore entitle HaiWai or HaiWai's licensors or suppliers, as the case may be, to injunctive relief. The headings in this Agreement are for the purpose of convenience only and shall not limit, enlarge, or affect any of the covenants, terms, conditions or provisions of this Agreement.