KoaWare Terms and Conditions

Last Updated: November 1, 2018

1. Overview

2. Amendment of the Terms

3. Definitions

4. Using the KoaWare Marketplace to enter into a Booking Agreement

5. Your KoaWare Marketplace Account

6. Modifications to Service

7. Consent to Autodialed Text Message and Electronic Communications

8. Your Agreements, Representations and Warranties

9. Protection of the KoaWare Marketplace Site and Users.

10. Payments

10.1 General

10.2 Service Provider Payment

10.3 Limited Payment Collections Agent

10.4 Payment Processor

10.5 Non-Payment

10.6 Refunds

10.7 Purchase and Sales Transactions

11. Conditions

11.1 Your Conduct

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

11.5 Selling Services

11.6 Buying

11.7 Children Under Thirteen

11.8 Services Descriptions

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 Marketplace or Posted on Any KoaWare Web Page

11.15 Transmission of Content

11.16 International Users

11.17 Disputes

11.18 Arbitration

11.19 Class Action Waiver

11.20 Internet Delays

11.21 Liability Disclaimer

11.22 Termination/Access Restriction

11.23 Changes to Terms

11.24 Notice for California Users

12. Contact Information

12.1 Address

12.2 Email Address

1. Overview

The KoaWare Marketplace is an online service, offered by KoaWare LLC, (references herein to “ KoaWare ” are to the KoaWare Marketplace 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.

2. Amendment of the Terms  

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 THE KOAWARE MARKETPLACE TO BOOK ANY SERVICE OR PROVIDING ANY SERVICE BOOKED THROUGH THE KOAWARE MARKETPLACE ON OR AFTER THE EFFECTIVE DATE OF AN AMENDMENT TO THE TERMS  CONSTITUTES ACCEPTANCE OF THE TERMS  AS AMENDED.

3. Definitions

KoaWare Marketplace ” 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 similar services.

Service Provider ” means any person or entity that provides or offers to provide real estate marketing-related Services  through the KoaWare Marketplace.

Subject ” means any person or entity that books Services from a Service Provider through the KoaWare Marketplace.

Booking Agreement ” means an agreement that a Subject and Service Provider enter into using the KoaWare Marketplace regarding the provision of Services.

You ” and “ Your ” refer, as the case may be, to the Service Provider and/or Subject using the KoaWare Marketplace.

4. Using the KoaWare Marketplace to enter into a Booking Agreement

 

The KoaWare Marketplace 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 the KoaWare Marketplace.  

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 the Koaware Marketplace, 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.

5. Your KoaWare Marketplace Account

When You register to use the KoaWare Marketplace, 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 the KoaWare Marketplace, 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 reserve the right to terminate accounts and/or remove content related to an account, at its sole discretion.

6. Modifications to Service

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 Marketplace will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

7. Consent to Autodialed Text Message and Electronic Communications

Visiting KoaWare Marketplace 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.

8. Your Agreements, Representations and Warranties

By registering to use, and by using, the KoaWare Marketplace, You agree, represent and/or warrant that:

  • You are at least 18 years old, are legally able to agree to the Term and have the authority and capacity to so agree.

  • A ll information You provide to, or though, KoaWare and/or the KoaWare Marketplace is/will be true and accurate and will be maintained up-to-date.

  • You will provide Koaware with whatever proof of identity it may reasonably request.

  • You will keep Your account user ID and password secure and confidential and will not allow others to use Your account.

  • You will not assign or otherwise transfer Your account to any other person or entity.

  • You will not use any unauthorized means to access the KoaWare Marketplace,

  • You will not use the KoaWare Marketplace to identify Subjects or Service Providers and then enter into offline transactions that circumvent your payment obligations for Services with the identified persons or entities. KoaWare re serves the right to take action to rectify any attempt to circumvent the website, and at KoaWare’s sole discretion may terminate your account.
  • You agree to make and receive payments through KoaWare Marketplace for each Booking Agreement; You agree not to circumvent the Payment Methods offered by KoaWare Marketplace.
  • By way of illustration and not in limitation of the foregoing, you agree not to:
  • Submit proposals or solicit parties identified through KoaWare Marketplace to contract, hire, work with, or pay for quoted servcies outside KoaWare Marketplace.
  • Accept proposals or solicit parties identified through KoaWare Marketplace to contract, invoice, or receive payment outside the website.
  • Request an invoice or payment amount lower than that actually agreed between Subject and Service Provider.
  • Refer a Subject or Service Provider you identified on KoaWare Marketplace to a third-party who is not a Subject or Service Provider of the website for purposes of making or receiving payments off KoaWare Marketplace.
  • You will only submit or upload content to KoaWare Marketplace for the services requested in the Booking Agreement; should You upload content for services conducted outside of the Booking Agreement, KoaWare reserves the right to review, remove and/or charge the respective amount for the added service conducted during the appointment by the Service Provider.

  • You will ensure that Your calendar is always up to date.

  • KoaWare has no obligation to monitor calendar schedules and is not responsible for any scheduling conflict, cancellation or loss of business that may arise in relation to calendar availability .

  • No joint venture, partnership, employment, contractor or agency relationship exists between You and KoaWare as a result of this agreement, Your registration as a user of the Koaware Marketplace, Your use of the Koaware Mar k etplace or any Booking Agreement.

  • You will not use the Site for any fraudulent purposes or to cause nuisance, annoyance or inconvenience. It is your responsibility to ensure you have the correct software and equipment for use with the Site. You will only use an access point or data account that you are authorized to use. KoaWare reserves the right to terminate your use of the Site and Services if you use an incompatible or unauthorized device.

  • You will comply with all state, federal, and local laws applicable to Your use of the KoaWare Marketplace and/or Your Booking Agreement(s).You will not copy or distribute any content from the KoaWare Marketplace without written permission from KoaWare.

9. Protection of the KoaWare Marketplace Site and Users

By registering to use and/or using the KoaWare Marketplace, you further agree, represent and warrant that you will not:

  • Create Internet "links" to the KoaWare Marketplace or "frame" or "mirror" any software on any other server or wireless or Internet-based device.
  • Reverse engineer or access the KoaWare Marketplace (except as permitted by applicable law) in order to, build a competitive product or service, build a product using similar ideas, features, functions or graphics or copy any ideas, features, functions or graphics therefrom.
  • Launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the KoaWare Marketplace.
  • Send spam or otherwise duplicative or unsolicited messages in violation of applicable laws through the KoaWare Marketplace
  • Send or store through or on the KoaWare Marketplace infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights.
  • Send or store through or on the KoaWare Marketplace material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs.
  • Engage in any activities that violate the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq.  and its regulations at 47 C.F.R. § 64.1200; the Do-Not-Call Implementation Act, 15 U.S.C. § 6101 et seq. ; or any similar anti-spam, data protection, or privacy legislation in any jurisdiction.
  • Interfere with or disrupt the integrity or performance of the KoaWare Marketplace or the data contained therein.
  • Attempt to gain unauthorized access to the KoaWare Marketplace or its related systems or networks.
  • Try to harm the KoaWare Marketplace in any way.

10 . Payments

10 .1 General

Each Subject agrees to pay all applicable fees at the point of booking as set forth on the KoaWare Marketplace. 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 the KoaWare Marketplace for Fees and in accordance with the terms of such fees and purchases and this Terms of Service.

10 .2 Service Provider Payment

KoaWare Marketplace 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 Marketplace is not responsible for content quality issues, and will refer the Subject to communicate directly with the Service Provider to rectify Service quality issues.

10 .3 Limited Payment Collections Agent

Each Service Provider appoints KoaWare Marketplace 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 Marketplace, 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 Marketplace, 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 Marketplace and the Service Provider.

10 .4 Payment Processor

Payment processing services for Subject  and Service Providers on KoaWare Marketplace 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 Marketplace, 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 Marketplace enabling payment processing services through Stripe, you agree to provide KoaWare Marketplace accurate and complete information about you and your business, and you authorize KoaWare Marketplace to share it and transaction information related to your use of the payment processing services provided by Stripe.

 

10 .5 Non-Payment

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.

10 .6 Refunds

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. Under no circumstances shall refunds exceed the amount you paid for your Membership Fee during the prior membership term. All fees apply even if the appointment is rescheduled.

10 .7 Purchase and Sales Transactions

 

Service Fee Policy:

KoaWare charges a 20% (twenty percent) service fee to every transaction completed with the KoaWare Marketplace .

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% (twenty percent) 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 Marketplace 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 Marketplace (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.

11 . Conditions

11.1 Your Conduct

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:

  • sell, post or otherwise transmit any item or content that (i) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another‘s privacy, hateful racially, ethnically or otherwise objectionable; (ii) you do not have a right to sell or transmit under any law or under contractual or fiduciary relationships; (iii) poses or creates a privacy or security risk to any person; (iv) infringes any intellectual property or other proprietary rights of any party; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, "junk mail," "spam," "chain letters," "pyramid schemes," "contests," "sweepstakes," or any other form of solicitation; (vi) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (vii) in the sole judgment of KoaWare, is objectionable or which restricts or inhibits any other person from using or enjoying the Site, or which may expose KoaWare or its users to any harm or liability of any type;
  • impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
  • solicit personal information from anyone under the age of 18;
  • harvest or collect email addresses or other contact information of other users from the Service or the Site by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
  • advertise or offer to sell or buy any goods or services other than those items intended to be sold and purchased through the Site;
  • further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or

11 .2 Your Responsibility to Make an Independent Determination

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.

11 .3 KoaWare has no obligation to confirm identity of Subjects nor Service Providers

KoaWare may attempt, but is under no obligation, to independently confirm a user's purported identity , nor conduct background checks.

11 .4 Service Listing Restrictions

KoaWare prohibits the listing or sale of any service that is illegal to sell under any applicable law, statute, ordinance, or regulation.

11 .5 Selling Services

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.

11 .6 Buying

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.

 

11 .7 Children Under Thirteen

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 Marketplace only with permission of a parent or guardian.

 

11 .8 Services Descriptions

KoaWare attempts to be as accurate as possible. However, KoaWare does not warrant that descriptions of services or other content of this KoaWare Marketplace 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.

 

11 .9 Links to Third Party Sites/Third Party Services

KoaWare Marketplace 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 Marketplace are delivered by third party sites and organizations. By using any product, service or functionality originating from the KoaWare Marketplace 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 Marketplace users and customers.

 

11 .10 No Unlawful or Prohibited Use/Intellectual Property

You are granted a non-exclusive, non-transferable, revocable license to access and use KoaWare Marketplace 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.

 

11 .12 Copyright and Alleged Intellectual Property Violations

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.

 

11 .13 Use of Communication Services

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 e-mail 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.

11 .14 Materials Provided to KoaWare Marketplace or Posted on Any KoaWare Web Page

KoaWare does not claim ownership of the materials you provide to KoaWare Marketplace (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.

11 .15 Transmission of Content

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.

 

11 .16 International Users

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 Marketplace in any country or in any manner prohibited by any applicable laws, restrictions or regulations.

 

11 .17 Disputes

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.

 

11 .18 Arbitration

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.

 

11 .19 Class Action Waiver

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'S 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.

 

11 .20 Internet Delays

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.

 

11 .21 Liability Disclaimer

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.

 

11 .22 Termination/Access Restriction

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.

 

11 .23 Changes to Terms

KoaWare reserves the right, in its sole discretion, to change the Terms under which KoaWare Marketplace 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.

11 .24 Notice for California Users

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.

 

12 . Contact Information

KoaWare welcomes your questions or comments regarding the Terms:

12 .1 Address

KoaWare LLC

PO Box 2651

Capistrano Beach, California 92624

 

12 .2 Email Address

support@koaware.com