KoaWare Terms and Conditions
Last Updated: January 1 , 2020
4. Using KoaWare to enter into a Booking Agreement
5.1 Enabling KoaWare’s Affiliate Program
7. Consent to Autodialed Text Message and Electronic Communications
8. Your Agreements, Representations and Warranties
9. Protection of KoaWare Site and Users.
10.3 Limited Payment Collections Agent
10.7 Purchase and Sales Transactions
11.2 Your Responsibility to Make an Independent Determination
11.3 KoaWare has no obligation to confirm identity of Subjects nor Service Providers
11.4 Service Listing Restrictions
11.9 Links to Third Party Sites/Third Party Services
11.10 No Unlawful or Prohibited Use/Intellectual Property
11.12 Copyright and Alleged Intellectual Property Violations
11.13 Use of Communication Services
11.14 Materials Provided to KoaWare or Posted on Any KoaWare Web Page
11.22 Termination/Access Restriction
11.24 Notice for California Users
The KoaWare is an online service, offered by KoaWare LLC, (references herein to “ KoaWare ” are to KoaWare and KoaWare, LLC) through which parties seeking to obtain or provide certain real estate marketing-related services are able to book such services subject to the terms ( “ Terms ”) set forth herein.
KoaWare reserves the right, in its sole discretion, to amend the Terms at any time. Any amendments, and their effective dates, will be posted on this page. USING KoaWare TO BOOK ANY SERVICE OR PROVIDING ANY SERVICE BOOKED THROUGH KoaWare ON OR AFTER THE EFFECTIVE DATE OF AN AMENDMENT TO THE TERMS CONSTITUTES ACCEPTANCE OF THE TERMS AS AMENDED.
“ KoaWare ” means the website ( “Site”) , www.koaware.com , its affiliate links, web pages, mobile applications and related services.
“ Services ” means photography (including but not limited to aerial photography), videography (including but not limited to videography), 3D virtual tour, photo editing and/or other services listed on KoaWare .
“ Service Provider ” means any person or entity that provides or offers to provide Services through KoaWare.
“ Subject ” means any person or entity that books Services from a Service Provider through KoaWare.
“ Booking Agreement ” means an agreement that a Subject and Service Provider enter into using KoaWare regarding the provision of Services.
“ You ” and “ Your ” refer, as the case may be, to the Service Provider and/or Subject using KoaWare.
“Affiliate’s Commission Rate” refers to the percentage displayed by KoaWare on your affiliate dashboard.
An “ Affiliate” is anyone who joins or enables KoaWare’s Affiliate/Referral program
A “ Visitor” is anyone who clicks a Tracking Link from the Affiliate
A “ Tracking Link” is a unique link provided to each Affiliate when Affiliate enables KoaWare’s Affiliate/Referral program. This link contains a unique value which is used to track the Visitor’s activity.
An “ Affiliate Key” is a unique value used passed to a Visitor’s browser cookies to attribute sales information back to Affiliate.
An “ Appointment” is any service scheduled by a Booker through KoaWare
A “ Booker” is any Visitor who pays for and schedules an Appointment
KoaWare enables Subjects and Service Providers to enter into Booking Agreements. KoaWare does not provide Services. KoaWare is not a party to any Booking Agreement or any other arrangement between a Subject and a Service Provider related to Services booked through KoaWare.
KoaWare does not employ, otherwise control or endorse any Subject or any Service Provider. KoaWare makes no representations regarding any Subject, Service Provider or any Services provided or to be provided by a Service Provider.
KoaWare does not control, endorse, guarantee or warranty the availability, authenticity, quality, safety, or legality of any content, other information provided, or to be provided, by a Service Provider pursuant to a Booking Agreement. Nor does KoaWare guarantee or warranty payment for booked Services.
You are responsible for conducting whatever investigation or research is necessary or appropriate before entering into a Booking Agreement. By entering into a Booking Agreement, You agree to assume all risk of dealing with the other party to the Booking Agreement including, but not limited to, the risk that such party may be acting under false pretenses. KoaWare may, in its sole discretion, have criminal and/or financial background checks conducted on a Subject or Service Provider. By having such background checks conducted, KoaWare DOES NOT WAIVE ANY DISCLAIMER OR LIMITATION OF LIABILITY, INCLUDING WITHOUT LIMITATION, THOSE SET FORTH HEREIN.
By entering into a Booking Agreement, You agree that KoaWare has no liability for any damages arising from or related to the provision, or a failure to provide, the booked Services and/or payment for the booked Services, including but not limited to damages for bodily injury or damage to property.
By entering into a Booking Agreement, You waive any right to bring or assert any claim against KoaWare arising from or relating to any interaction with or dealing between you and any other party to the Booking Agreement and You release KoaWare from any liability for all such claims.
By entering into a Booking Agreement, You agree to indemnify, defend and hold harmless KoaWare, its officers, directors, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorney's fees) relating to or arising out of Your use of or inability to use KoaWare, including but not limited to those arising out of postings made by You or out of any violation, by the You, of any TERM, right of a third party or any applicable law, rule or regulation. KoaWare reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You agree to fully cooperate with KoaWare in asserting any available defenses.
When You register to use the KoaWare, You will be assigned a user ID and a password. You are solely responsible for maintaining and protecting the confidentiality of Your user ID and password. By registering to use KoaWare, You agree th at KoaWare is not responsible for any activities conducted under your account or for any third party access to your account that results from theft or misappropriation of your user ID and or password. KoaWare reserves the right to terminate accounts and/or remove content related to an account, at its sole discretion.
5.1 Enabling KoaWare’s Affiliate Program
By creating a KoaWare account as an affiliate or creating a Tracking Link with an existing account you agree to the following terms.
5.1.1 Terms
If a Visitor purchases services using Affiliate’s Tracking Link, the Affiliate will receive commission equal to Affiliate’s Commission Rate of the total service cost excluding any travel or credit card processing fees. Credit card processing fees equal 2.9% of the total transaction cost. No commission will be paid if a visitor combines their purchase with any type of discount.
Commissions will appear on Affiliates KoaWare Dashboard 2 business after the appointment has been serviced and verified as completed by KoaWare, the Booker and the Service Provider. Generally this verification happens within 2-4 business days following a service appointment.
Commissions can be withdrawn from your account when the total balance is greater than or equal to $50USD.
If an Appointment is cancelled for any reason, commission will not be paid, even if a Booker still pays a Service Provider a cancellation fee.
If an Appointment is cancelled or refunded for any reason after Affiliate has been paid commission for the respective appointment, KoaWare reserves the right to charge Affiliate, or withhold from future payments, the amount of this commission.
If for any reason the total cost of an Appointment’s service is adjusted, Affiliates commission will be calculated based on the most recent amount.
5.1.2 Cookies
To track a referral, Affiliate shares their Tracking Link. When a Visitor clicks this Tracking Link, a cookie is set in the Visitors browser. This cookie is set to expire on the Visitor’s browser 30 days following their last Tracking Link click.
If a Visitor clicks a Tracking Link belonging to another Affiliate during this period, the cookie on the Visitors browser will be updated to the most recent Affiliate Key present in the Tracking Link.
If a Visitor clears their cookies, does not have cookies enabled by their browser or uses any type of ad blocker which prevents their browser from selecting certain cookies, the Visitor will not be tracked and calculating a commission will not be possible.
5.1.3 Termination
KoaWare reserves the right to terminate this agreement with Affiliate at any time for any reason. Affiliate will be paid their remaining commission balance unless Affiliate has violated KoaWare’s Terms of Service in any way.
KoaWare reserves the right to modify or discontinue, temporarily or permanently, the services of the KoaWare Market p lace (or any part thereof) with or without notice. You agree that KoaWare will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
Visiting KoaWare and/or sending emails to KoaWare constitute electronic communications. By doing so, You consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communications be in writing.
You agree that KoaWare may contact you by autodialed text messages and phone calls with information about the Services, your account, and with marketing messages, even if your phone number is on a do-not-call list. You are not required to provide this consent as a condition of purchasing anything or using the Services. In the event you change or deactivate your mobile telephone number, you agree to promptly update your KoaWare account information to ensure that your messages are not sent to the person that acquires your old number.
By registering to use, and by using, KoaWare, You agree, represent and/or warrant that:
By registering to use and/or using KoaWare, you further agree, represent and warrant that you will not:
Each Subject agrees to pay all applicable fees at the point of booking as set forth on KoaWare. All Fees are payable in U.S. Dollars unless otherwise specified. If a Subject requests amended Services, including but not limited to changes to the time, location or type of Services provided, a change fee may be charged. All change fees are payable before any Variations will be accepted and performed.
You are responsible for all taxes associated with the Services other than U.S. taxes based on Company’s net income.
Except as otherwise expressly set forth herein or as expressly approved by KoaWare in writing in its sole discretion, all payments made are final and non-refundable and the Subject shall not have the right to cancel its purchase for any reason. If you make a payment by credit card or other payment instrument, you represent and warrant that such information is true and that you are authorized to use such payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay KoaWare the amount that is specified on KoaWare for Fees and in accordance with the terms of such fees and purchases and this Terms of Service.
KoaWare will facilitate direct payment deposits to a Service Provider’s nominated bank account the total Transaction cost accumulated for the Services provided to a Subject minus the fee payable to KoaWare for referring the Subject(s) to such Service Provider as set forth in terms provided to Service Providers at the time of their registration.
KoaWare has sole discretion to act on behalf of the Subject, and to not pay Service Provider payments, i f the Subject reports that the Services were not provided or appointment for Services was cancelle d, and was reported within 30 (thirty) days of the initial Booking Agreement appointment time . This may include but is not limited to circumstances where a Service Provider did not arrive for a Booking Agreement , or the Booking Agreement was cancelled within the mutually agreed upon time frame. KoaWare is not responsible for content quality issues, and will refer the Subject to communicate directly with the Service Provider to rectify Service quality issues.
Each Service Provider appoints KoaWare as the Service Provider’s limited payment collection agent solely for the purpose of accepting the Payment from the Subject. Each Subject agrees that payment of Service Fees in respect of a Service Provider by a Subject to KoaWare, as that Service Provider’s limited payment collection agent, shall be considered the same as a payment made directly by that Subject to the relevant Service Provider and the Service Provider will provide the relevant Services to the Subject, as outlined on the Site, as if the Service Provider had received payment directly. KoaWare, as limited payment collection agent for the Service Provider, agrees to facilitate the payment of any Service Provider Fees for Services provided, unless otherwise agreed between KoaWare and the Service Provider.
Payment processing services for Subject and Service Providers on KoaWare are provided by Stripe and are subject to the Stripe Connected Account Agreement , which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to [this agreement / these terms / etc.] or continuing to operate as a Subject and/or Service Provider on KoaWare, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of KoaWare enabling payment processing services through Stripe, you agree to provide KoaWare accurate and complete information about you and your business, and you authorize KoaWare to share it and transaction information related to your use of the payment processing services provided by Stripe.
If a Subject fails to pay the Service Fees or any other amounts due under the Terms of Service, whether by canceling Subject ’s credit or debit card, initiating an improper chargeback, or any other means, KoaWare may suspend or close Your a ccount and revoke Your access to the Site, including Your authority to use the Site to process any additional payments, enter into Service Contracts, or obtain any additional Services. Without limiting other available remedies, Subject must pay KoaWare upon demand for amounts owed under the Terms of Service, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law. To the extent permitted by applicable law, KoaWare, at our discretion, may set off amounts due against other amounts received from or held by KoaWare for You , make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with credit reporting agencies and law enforcement authorities in any resulting investigation or prosecution.
KoaWare charges a cancellation fee under specific circumstances or instances, including but not limited to same-day cancellations, day before cancellations, no-shows to appointment times, and more. All fees apply even if the appointment is rescheduled unless otherwise noted by KoaWare.
Unless otherwise noted upon checkout, cancellations can be made at no charge up to 24 hours before your scheduled appointment. Within 24 hours of your appointment cancellation fees are broken down as follows:
Service Fee Policy:
KoaWare charges a 20% service fee to every transaction completed with KoaWare .
Service Provider Fee Policy:
Registering and listing Services is always free on KoaWare. When a transaction occurs between a Subject and Service Provider, KoaWare will add on a 20% service fee to the total cost of the transaction. This does not include credit card processing fees , which are added to the Service Provider’s fee.
Travel Cost Policy:
The Service Provider has the right to set a travel cost associated with travel outside the designated travel perimeter, set by the Service Provider. This cost may exist or not exist as related to each individual Service Provider, and if set, the rate may vary.
Fees and Transactions:
Registering for KoaWare is free; however, KoaWare charges certain fees for various transactions effected through the Site. Unless otherwise stated, all fees are quoted in U.S. Dollars. In addition to the payment of the applicable purchase price for a purchased service, You are responsible for paying all applicable sales, excise, import, export, VAT and other taxes or duties associated with the purchase and sale of any items through the Site. All such fees are not included in the listed price for any items made available through the Site, but will be displayed to You before confirmation of any purchase. Service Providers are responsible for all income taxes associated with the purchase and sale of Services through KoaWare and the Site.
Credit Card Transactions:
To the extent you as a Client effect any transactions using a credit card, you must have a valid credit card on file, a third party credit card processor may store your credit card information. By agreeing to pay for a transaction with your credit card, you authorize us and a third party credit card processor to charge your credit card. Credit card fees may apply.
Fee Modifications:
We reserve the right to change or discontinue, temporarily or permanently, some or all of the fees for the Site and/or KoaWare (including to lower fees for promotional events), and such changes are effective when we post information about the fee change through the Site. Additionally, we may change our Fee Policy at any time and in our sole discretion, and any changes to the Fee Policy are effective upon the posting of such changes to the Fee Policy.
You are solely responsible for all descriptions, pictures of items, listings, information, data, text, software, music, sound, graphics, video, messages or other materials (" content ") that you upload, post, publish or display (hereinafter, " post ") or otherwise transmit via the Services and Site, and for all items that you sell or purchase via the Services and Site. The following are examples of the kind of items, content and/or use that is illegal or prohibited by KoaWare. KoaWare reserves the right to investigate and take appropriate legal action against anyone who, in KoaWare's sole discretion, violates this provision, including without limitation, removing the offending items or content from the Site, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Site to:
FOR EVERY TRANSACTION THAT IS COMMENCED THROUGH OUR SITE, YOU MUST MAKE YOUR OWN INDEPENDENT DETERMINATION REGARDING THE STATEMENTS, SERVICE DESCRIPTIONS OR THE REPRESENTATIONS OF THE OTHER PARTY AND THE PARTY'S ABILITY TO PAY FOR OR DELIVER THE SERVICE(S) OFFERED. PLEASE USE CAUTION, COMMON SENSE, AND PRACTICE SAFE TRADING WHEN DEALING WITH OTHER USERS, SERVICE PROVIDERS OR OTHERWISE USING THE SITE. AS STATED PREVIOUSLY, KoaWare IS NOT RESPONSIBLE FOR THE ACTIONS AND INTERACTIONS OF USERS AND SERVICE PROVIDERS AT ANY POINT OF THE TRANSACTION, BOOKING, APPOINTMENT, AND COMPLETION OF SERVICES.
KoaWare may attempt, but is under no obligation, to independently confirm a user's purported identity , nor conduct background checks.
KoaWare prohibits the listing or sale of any service that is illegal to sell under any applicable law, statute, ordinance, or regulation.
You must have the legal authority to sell the services that you are listing for sale through the Site. You must describe your service and all terms of sale in your listing truthfully, accurately and reasonably completely. If You accept a booking, You shall complete the transaction with the Subject unless the transaction is prohibited by law or these Terms of Service. You are also responsible for payment of the commission to KoaWare as set forth in the Fee Policy.
If you agree to purchase a service through KoaWare and confirm the transaction, you are obligated to complete the transaction in accordance with the terms and conditions specified by the Service Provider and KoaWare, unless the transaction is prohibited by law or these Terms of Service.
KoaWare does not knowingly collect, either online or offline, personal information from persons under the age of thirteen. If you are under 18, you may use KoaWare only with permission of a parent or guardian.
KoaWare attempts to be as accurate as possible. However, KoaWare does not warrant that descriptions of services or other content of this KoaWare is accurate, complete, reliable, current, or error-free. KoaWare provides links to other sites over which KoaWare has no control. KoaWare is not responsible for the availability of such external sites or resources and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources.
KoaWare may contain links to other websites ("Linked Sites"). The Linked Sites are not under the control of KoaWare and KoaWare is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. KoaWare is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by KoaWare of the site or any association with its operators.
Certain services made available via KoaWare are delivered by third party sites and organizations. By using any product, service or functionality originating from KoaWare domain, you hereby acknowledge and consent that KoaWare may share such information and data with any third party with whom KoaWare has a contractual relationship to provide the requested product, service or functionality on behalf of KoaWare users and customers.
You are granted a non-exclusive, non-transferable, revocable license to access and use KoaWare strictly in accordance with these terms of use. As a condition of your use of the Site, you warrant to KoaWare that you will not use the Site for any purpose that is unlawful or prohibited by these Terms. You may not use the Site in any manner which could damage, disable, overburden, or impair the Site or interfere with any other party's use and enjoyment of the Site. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Site.
All content included as part of the Service, such as text, graphics, logos, images, as well as the compilation thereof, and any software used on the Site, is the property of KoaWare or its suppliers and protected by copyright and other laws that protect intellectual property and proprietary rights. You agree to observe and abide by all copyright and other proprietary notices, legends or other restrictions contained in any such content and will not make any changes thereto.
You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part, found on the Site. KoaWare content is not for resale. Your use of the Site does not entitle you to make any unauthorized use of any protected content, and in particular you will not delete or alter any proprietary rights or attribution notices in any content. You will use protected content solely for your personal use, and will make no other use of the content without the express written permission of KoaWare and the copyright owner. You agree that you do not acquire any ownership rights in any protected content. We do not grant you any licenses, express or implied, to the intellectual property of KoaWare or our licensors except as expressly authorized by these Terms.
You may have heard of the Digital Millennium Copyright Act (the "DMCA"), as it relates to online service providers, like KoaWare, being asked to remove material that allegedly violates someone's copyright. We respect others' intellectual property rights, and we reserve the right to delete or disable content alleged to be infringing any intellectual property rights at our sole discretion, and to terminate the accounts of repeat alleged infringers.
The Site may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages or bios, calendars, and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, "Communication Services"). You agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service.
By way of example, and not as a limitation, you agree that when using a Communication Service, you will not: defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others; publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information; upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents; upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer; advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages; conduct or forward surveys, contests, pyramid schemes or chain letters; download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner; falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded; restrict or inhibit any other user from using and enjoying the Communication Services; violate any code of conduct or other guidelines which may be applicable for any particular Communication Service; harvest or otherwise collect information about others, including email addresses, without their consent; violate any applicable laws or regulations.
KoaWare has no obligation to monitor the Communication Services. However, KoaWare reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. KoaWare reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever.
KoaWare reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in KoaWare's sole discretion.
Always use caution when giving out any personally identifying information about yourself or your children in any Communication Service. KoaWare does not control or endorse the content, messages or information found in any Communication Service and, therefore, KoaWare specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Managers and hosts are not authorized KoaWare spokespersons, and their views do not necessarily reflect those of KoaWare.
Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination. You are responsible for adhering to such limitations if you upload the materials.
KoaWare does not claim ownership of the materials you provide to KoaWare (including feedback and suggestions) or post, upload, input or submit to any KoaWare Site or our associated services (collectively "Submissions"). However, by posting, uploading, inputting, providing or submitting your Submission you are granting KoaWare, our affiliated companies and necessary sublicensees permission to use your Submission in connection with the operation of their Internet businesses including, without limitation, the rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; and to publish your name in connection with your Submission.
B y posting content on the Site, Y ou give others certain limited rights to that content, as detailed below:
You grant to KoaWare and our successors and Affiliates a royalty-free, sub-licensable, transferable, perpetual, irrevocable,worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such Submissions and your name, voice, and/or likeness as contained in your Submissions , in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, for use in connection with the Site, our successors’ and Affiliates’ businesses, including, without limitation, for promoting and redistributing part or all of the Site (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each Subject a license to access your Submissions through the Site and to use, reproduce, distribute, and display such Submissions to the extent permitted through the normal functionality of the Site and subject to all applicable confidentiality and other provisions of the Terms of Service, our Privacy Policy, and applicable law .
No compensation will be paid with respect to the use of your Submission, as provided herein. KoaWare is under no obligation to post or use any Submission you may provide and may remove any Submission at any time in KoaWare's sole discretion.
By posting, uploading, inputting, providing or submitting your Submission you warrant and represent that you own or otherwise control all of the rights to your Submission as described in this section including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions.
Upon completion of the Services, Service Providers are responsible for uploading the content to the Site for the Subject to download, access, and retain. Upon upload, the Subject retains rights to utilize the content provided by the services rendered from the Service Provider. The Service Provider cannot redistribute, or sell the content paid for by the Subject . The Service Provider is only allowed to display work within his or her portfolio.
The Service is controlled, operated and administered by KoaWare from our offices within the U nited States of America (USA) . If you access the Service from a location outside the USA, you are responsible for compliance with all local laws. You agree that you will not use the KoaWare Content accessed through KoaWare in any country or in any manner prohibited by any applicable laws, restrictions or regulations.
You agree that you are solely responsible for your interactions (including any B ooking Agreement, purchase and sale transactions, or quality of service provided) with any other Subject or Service Provider in connection with the Services and KoaWare will have no liability or responsibility with respect thereto. KoaWare reserves the right, but has no obligation, to become involved in any way with disputes between You and any other party to a Booking Agreement.
In the event the parties are not able to resolve any dispute between them arising out of or concerning these Terms and Conditions, or any provisions hereof, whether in contract, tort, or otherwise at law or in equity for damages or any other relief, then such dispute shall be resolved only by final and binding arbitration pursuant to the Federal Arbitration Act, conducted by a single neutral arbitrator and administered by the American Arbitration Association, or a similar arbitration service selected by the parties, in a location mutually agreed upon by the parties. The arbitrator's award shall be final, and judgment may be entered upon it in any court having jurisdiction. In the event that any legal or equitable action, proceeding or arbitration arises out of or concerns these Terms and Conditions, the prevailing party shall be entitled to recover its costs and reasonable attorney's fees. The parties agree to arbitrate all disputes and claims in regards to these Terms and Conditions or any disputes arising as a result of these Terms and Conditions, whether directly or indirectly, including Tort claims that are a result of these Terms and Conditions. The parties agree that the Federal Arbitration Act governs the interpretation and enforcement of this provision. The entire dispute, including the scope and enforceability of this arbitration provision shall be determined by the Arbitrator. This arbitration provision shall survive the termination of these Terms and Conditions.
Any arbitration under these Terms and Conditions will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both you and KoaWare agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
KoaWare'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. KoaWare IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. KoaWare LLC AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SITE AT ANY TIME.
KoaWare LLC AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. KoaWare LLC AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KoaWare LLC AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITE, WITH THE DELAY OR INABILITY TO USE THE SITE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF KoaWare LLC OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE.
KoaWare reserves the right, in its sole discretion, to terminate your access to the Site and the related services or any portion thereof at any time, without notice. To the maximum extent permitted by law, this agreement is governed by the laws of the State of Delaware and you hereby consent to the exclusive jurisdiction and venue of courts in Delaware in all disputes arising out of or relating to the use of the Site. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this section.
You agree that no joint venture, partnership, employment, contractor or agency relationship exists between you and KoaWare as a result of this agreement or use of the Site. KoaWare's performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of KoaWare's right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by KoaWare with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect.
Unless otherwise specified herein, this agreement constitutes the entire agreement between the Subject and KoaWare, as well as the Service Provider and KoaWare, with respect to the Site and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the Subject and KoaWare, as well as Service Provider and KoaWare, with respect to the Site. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that this agreement and all related documents be written in English.
KoaWare reserves the right, in its sole discretion, to change the Terms under which KoaWare is offered. The most current version of the Terms will supersede all previous versions. KoaWare encourages you to periodically review the Terms to stay informed of our updates.
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at KoaWare LLC, P.O. Box 2651, Capistrano Beach, CA 92624.
KoaWare welcomes your questions or comments regarding the Terms:
KoaWare
24701 Dana Drive
Dana Point
California 92629
capobeach@koaware.com