Effective July 9, 2014.
1. Your Agreement With HFX.
1.1 Choice of Law. Your relationship is with HFX, a service owned and operated by the Hawaii Fashion Incubator (“HIFI”), a Hawaii Limited Liability Company, and you agree to be bound by the laws of Hawaii and the laws of the United States.
2. Your Content.
2.1 Ownership: You retain all rights and ownership in your content. HFX does not claim any ownership rights in your content.
2.2 License to Your Content. Even though we don’t claim ownership of your content, we do need certain licenses to your content in order to operate and enable the Services. When you upload or submit content to our Services, you grant HFX (and our parents and affiliates) a worldwide license to communicate, distribute, host, make modifications or derivative works (solely for the purpose of better showcase your work), publicly display, publicly perform, publish, reproduce, store, and use such content. The license granted by you is for the only purpose of operating, marketing, promoting, and improving our Services. We will attribute to you if we incorporate your content into an HFX feature or into promotional or marketing materials.
2.3 Accessing and Sharing Your Content. By submitting your content to our Services, you also give other HFX users the right to share your content via various social media platforms integrated with HFX. We may offer you ways to access and remove your content. Our Service may also provide ways for you to limit the scope of use and access and other user’s access and use of your content. You are responsible for determining the limitations that are placed on your content and for applying the appropriate level of access to your content. We do not monitor or control what others do with your content. It’s your responsibility to let other users know how your content may be shared and adjust the setting related to accessing and sharing your content accordingly.
2.4 Termination of License. You may terminate this license at any time by removing your content from the Services. However, you agree that HFX may retain and use copies of your content for archival or backup purposes and for the investigation purpose mentioned later.
2.5 Feedback: You have no obligation to provide HFX with ideas, suggestions or proposals (“Feedback”). If you submit Feedback to HFX, we may use it for any purpose without compensation to you and have no obligation to keep your Feedback confidential.
3. Who Can Use Our Services?
3.1 Service Eligibility: You can only use our Services if you are over 13 years old, it is legal for you to use our Services, and you are legally capable of entering into a binding contract. Users are responsible with complying with membership requirements applicable to their respective HFX membership level.
3.2 International Users: Pages describing the Services are accessible from around the world but this does not mean all Services or service features are available in your country, or that user-generated content available via the Services is legal in your country. HFX may block access to certain Services (or certain service features or content) in certain countries. It is your responsibility to make sure your use of the Services is legal in the country where you live. Services are not available in all languages.
4. Account Information.
You may need to create an account with us in order to use our Services. It is your responsibility to keep your log-in credentials secure and you are responsible to HFX for all activities that occur via your account. Unless HFX expressly allows you the right to create and manage account information as an account administrator for a company or as part of a team account, you may not use another person’s Account Information.
5. User Conduct.
5.2 Impersonation. Because HFX is all about professionals getting credit for what they create, we require that you (and you agree to) use your real name and real business in your profile. If we in good faith believe that you have created an account impersonating another person or business, we may, in our sole discretion and after an internal investigation, either transfer your account to the person who you are pretending to be or terminate your account with no liability to you.
5.3 Tell Us If You See Others Abusing The Services: Please report any problematic behavior or content you see on our Services by clicking the “Report” button and telling us about it.
6. Use of Our Services.
6.1 Certain Services and HFX Materials may be available only if you have paid a fee or have provided certain account information. As used in these Terms, “HFX Materials” means any materials or software provided by HFX under these Terms, which may include materials that you or other users share through the Services.
6.2 Unless otherwise stated in a separate agreement, we are not responsible for (a) the loss, corruption, or damage to your content, (b) the deletion or accuracy of your content, or (c) the security, privacy, or communications related to your content.
6.3 We may create limits on the use of Services or HFX Materials, including limitation on file size and storage space. HFX may require you to delete your content until you are within certain storage space limits.
6.4 We may include links to websites or services that we do not operate. We have no control over and are not responsible for the content appearing on these websites or services.
6.5 User-Generated Content. As you know, we host user-generated content from our users. If you access our Service, you may come across content that you may find offensive or upsetting. You agree that if the content at issue meets the Community Guidelines, your sole remedy is to simply stop viewing the content that bothers you. If the content violates the Community Guidelines, you agree your sole remedy is to tell us by clicking on the ‘Report” button that is available on every project.
6.6 Membership in HFX in no way implies, warrants, or guarantees that members will obtain paid work or be accepted or selected for HIFI events and initiatives including Hawaii Fashion Month. Selection and recruitment of HFX members for these opportunities will be dependent on the requirements of the specific opportunity and will be at the discretion of HIFI.
7.1 ProSite is an application that allows users to create and publish personal portfolio sites, leveraging their portfolio of projects published on Behance.net. The ProSite service works in tandem with Behance.net and a series of other services to help users create, publish, and host their personal portfolio sites on their own URL or another URL provided by the ProSite Service.
7.2 Cancellation. You must cancel your membership before it renews in order to avoid billing of the subscription fees for the next subscription period. HFX does not accept cancellation requests via phone, email, or any method other than logging into your ProSite.com account to cancel your service. Upon cancellation, all of your content will be deleted from the primary servers that provide the Service. Your content cannot be recovered once your account is cancelled.
7.3 For any upgrade or downgrade in plan level, the credit card you provided will automatically be charged the new rate on your next billing cycle. Downgrading your Service may cause the loss of Content, features, or Account capacity. It is your responsibility to make sure you preserve Content in your account before you downgrade.
7.4 If your bandwidth usage exceeds either 1 GB/month, or the average bandwidth usage (as determined solely by HFX), we reserve the right to immediately disable your account or throttle your file hosting until you can reduce your bandwidth consumption.
7.5 We may temporarily suspend or take down your ProSite if we think that it has been compromised or attacked.
8.1 Subscription Fees. Certain Services require you to purchase a subscription or membership in order to access all or part of such Services. Services provided for each membership level are provided at www.hawaiifashionexchange.com/_______.
8.2 You are responsible for paying all taxes levied in connection with your use of the Services. Your ability to access the Services may require payment of third-party fees (such as telephone toll charges, mobile carrier fees, ISP, data plan, credit card fees, foreign exchange fees, etc.) which are solely your responsibility.
9.1 We don’t review all content uploaded to the Services but we may use available technologies or processes to screen for certain types of illegal content or other abusive content or behavior (for example, patterns of activity that indicate spam or phishing, or keywords that indicate adult content has been posted outside of the adult wall).
9.2 HFX may access or disclose information about you, or your use of a service, (a) when it is required by law (such as when we receive a valid subpoena or search warrant); (b) to respond to your requests for customer service support; or (c) where we, in our discretion, think it is necessary to protect the rights, property or personal safety of HFX, our users, or the public.
10. HFX Materials.
10.1 HFX Materials. The Services and any trademarks, logo, sample code, software, and other content and assets (“HFX Materials”) that HFX provides to you as part of the Service are protected by intellectual property rights. Using our Services does not give you ownership of any such intellectual property rights. You may not use content accessible from our Service unless you obtain permission from its owner or are otherwise permitted by law. You are not permitted to use HFX or HIFI’s trademarks and logos related to the Services without our prior consent. Do not remove, obscure, or alter any text or proprietary notices contained in the HFX Materials. You cannot use the HFX Materials to construct any kind of database.
10.2 Software. If we make certain software available to you as part of the Service, then the software may be subject to a separate license agreement. If the software is a pre-release version, then the pre-release software is provided to you AS-IS and you are not permitted use the software for any commercial or production purposes (unless we have given you specific written permission stating otherwise). If no such separate license agreement is available, then HFX grants you a personal, non-transferrable, non-sublicensable license to use the software solely for the purpose of allowing you to use the Services in the manner permitted in these Terms. You may not copy, modify, distribute, sell, or lease any part of the Services or the software, nor may you reverse engineer or decompile the software unless laws prohibit these restrictions and you have made written request to us first. The software may automatically download and install updates from HFX. These updates are designed to improve and enhance the Services and may take the form of bug fixes, new Software modules, and completely new versions. You agree to receive such updates (and permit HFX to deliver these updates to you without your knowledge) as part of your use of the Services.
11. Your Warranty and Indemnification Obligations.
11.1 You represent and warrant that you own all intellectual property rights (or have obtained all necessary permissions) to your content and have the right to grant us the license stated in Section 2.2 above.
11.2 You also represent and warrant that your content will not violate or infringe any intellectual property right or other proprietary right, including the right of publicity or privacy, of any person or entity.
11.3 You agree to indemnify and hold HIFI and its subsidiaries, affiliates, officers, agents, employees, co-branders or other partners, and licensors harmless from any claim or demand, including reasonable attorneys’ fees, due to or arising out of your content, your use of the Services or HFX Materials, your violation of the Terms, or your violation of any rights of another.
12. Our Disclaimer of Warranties.
12.1 You acknowledge and agree that by accessing or using the Services, you may be exposed to materials from others that you may consider offensive, indecent, or otherwise objectionable, and agree to accept that risk. Views expressed on our website or through our Services do not necessarily reflect our views. We do not support or endorse certain content posted by you or other users. Certain content from others may be incorrectly labeled, rated, or categorized.
12.2 Although we do what we can to provide security measures to protect your content, we are not liable for any damages resulting from the disclosure of your content.
12.3 Disclaimer of Warranties: YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND HFX MATERIALS ARE PROVIDED TO YOU “AS IS,” WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. FOR EXAMPLE, WE MAKE NO WARRANTY THAT (a) THE SERVICES OR MATERIALS WILL MEET YOUR REQUIREMENTS OR WILL BE CONSTANTLY AVAILABLE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (b) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE, SERVICES, OR MATERIALS WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; OR THAT (c) ANY ERRORS OR DEFECTS IN THE SITE, SERVICES, OR MATERIALS WILL BE CORRECTED.
13. Our Limitation of Liability.
13.1 Limitation of Liability: IN NO EVENT SHALL HIFI, AND HIFI’S LICENSORS OR SUPPLIERS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER.
13.2 HIFI AFFILIATES’ AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO US $100 OR THE AGGREGATE AMOUNT PAID BY YOU FOR ACCESS TO THE SERVICE DURING THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, WHICHEVER IS LARGER.
13.3 THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION.
14. Settling Disputes With HFX.
14.1 Any dispute you have with HFX must be resolved by you in a court located in Honolulu, Hawaii, unless otherwise agreed in writing. You agree to the personal jurisdiction of the federal and state courts located in Honolulu, Hawaii.
14.2 Disclaimer: You and HIFI each disclaim the U.N. Convention on Contracts for the International Sale of Goods. We both agree it does not apply to the Services.
15.1 You can stop using our Services at any time.
15.2 We may add, modify, or remove features or functionalities, and we may suspend or stop a Service. We may also stop providing Services to you, or add or create new limits to our Services at any time.
15.3 Any fees that you paid prior to termination are not refundable. Termination of your account does not relieve you of any payment obligations.
15.4 If the Service is terminated or discontinued, then we will make reasonable effort to notify you and provide an opportunity to retrieve your content. If your group administrator terminates your access to a Service, then you may no longer be able to access content that you or other members have posted. You may, however, still access your content stored on your account.
16.1 Notice to HFX. Unless the Terms or Additional Terms say otherwise, you must send any notices to: Hawaii Fashion Incubator LLC, 1050 Ala Moana Boulevard #2580, Honolulu, Hawaii 96814.
16.2 Notice to You: HFX will give notices to you either via email, regular mail, text message, postings on or within the Services, or other means reasonable for the type of notice provided.
17. Notification of Copyright Infringement.
17.1 We respect the intellectual property rights of others and we expect our users to do the same. HFX will respond to clear notices of copyright infringement consistent with the U.S. Digital Millennium Copyright Act (“DMCA”).
17.2 Notifying Us of Copyright Infringement: If you believe the Services are hosting content that infringes your copyright, please send us the following:
(a) A description of the copyrighted work(s) you believe are infringed;
(b) The exact location (URL) where the infringing material resides on the Service;
(c) Contact information so that we can reach you, such as email address, your physical address and telephone number;
(d) A statement by you that you have a good faith belief that the use of the Material identified in your notice in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(e) A statement by you that the information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
(f) Your signature
Before you file an infringement notice, please carefully consider whether or not the use of copyrighted material at issue is protected by the “fair use” doctrine, as you could be liable for costs and attorneys’ fees should you file a takedown notice where there is no infringing use. Please also check to make sure you haven’t authorized the use at issue (for example, whether you have given a creative professional who prepared materials for your company the right to use those materials as examples of his or her past work). If you are unsure whether a use of your copyrighted material constitutes infringement, please contact an attorney. You may also wish to consult publicly available reference materials such as those found at the U.S. Copyright website (www.copyright.gov) or at the Chilling Effects website (www.chillingeffects.org).
17.3 If you believe access to your content was disabled or removed by HFX as a result of an improper copyright infringement notice, please send us a written counter-notice that contains all of the following:
(a) A description of the work improperly removed, along with your user name and the location where that work resided on the Service;
(b) Contact information so that we can reach you, such as email address, your physical address and telephone number;
(c) A statement under penalty of perjury, signed by you, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification;
(d) A statement that you consent to jurisdiction of the Federal District court for the district where you reside (or of Honolulu, Hawaii if you reside outside of the United Sates) and that you will accept service of process from the person who provided notification under DMCA subsection (c)(1)(C) or an agent of such person.
Before you file a counter-notice, please carefully consider whether or not your use of the copyrighted material at issue is infringing, as you could be liable for costs and attorneys’ fees in the event that a court decides your counter-notice misrepresented that the material was removed by mistake. If you are unsure whether use of the material at issue constitutes infringement, please contact an attorney. In addition, you may wish to consult publicly available reference materials such as those found at the U.S. Copyright website (www.copyright.gov) or at the Chilling Effects website (www.chillingeffects.org).
18. About these Terms.
18.1 Export Control. You acknowledge that the Service and HFX Material, and your use and handling of the Service and HFX Material, are subject to U.S. and international laws, restrictions, and regulations that may govern the import, export, and use of the Service and HFX Material. You agree to comply with all such laws, restrictions, and regulations.
18.2 English Version. The English version of this agreement will be the version used when interpreting or construing this agreement.
18.3 Severability: If a court finds any section of the Terms or Additional Terms invalid or unenforceable, the rest of the Terms or Additional Terms still apply.
18.4 No Waiver: If we don’t enforce (or we delay enforcement) of the Terms or Additional Terms against you, we haven’t waived our enforcement rights.
18.5 Assignment or Transfer: You can’t assign or transfer your rights or obligations under this agreement to someone else without HFX’s written permission. We can transfer our rights and obligations to you (if we are acquired by or merge with another company, sell one of the Services, or otherwise) without your permission.