Waiākea Hawaiian Volcanic Water | Store (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.

User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.

User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.

Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.

YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.

Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events.

Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.

Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at daniel@waiakea.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.

MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.

Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.

Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.

Age Restriction: You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.

Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:

Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge, LLC d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Culver City, California before one arbitrator.

The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which Waiākea Hawaiian Volcanic Water | Store’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.

Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.

11. DELIVERY SERVICE TERMS

Welcome to the Terms and Conditions (“Terms”) for our Waiākea Hawaiian Volcanic Water Store (our “Store”). These Terms are between you and Waiākea, Inc. (“Waiākea Hawaiian Volcanic Water”, “we”, “us” or “our”), and govern your and our respective rights and obligations.

Please note that your use of the waiakea.com website (the “Site”) is governed by the Terms, along with our Terms of Use and Privacy Policy, as well as all other applicable terms, conditions, limitations and requirements on the Site, all of which (as may be changed over time) are incorporated into these Terms, and together constitute the entire agreement between you and Waiākea Hawaiian Volcanic Water relating to our Store. By placing an order through our Store, you accept these Terms, conditions, limitations and requirements. Please read these Terms carefully.

SUBSCRIPTION SERVICES

Recurring Subscriptions: If you sign up for a monthly recurring subscription membership plan from our Store, you will receive the same products you ordered every month. Your recurring subscription will continue until it is canceled by either you or Waiākea Hawaiian Volcanic Water.

Either you or Waiākea Hawaiian Volcanic Water can cancel the Month-to-Month recurring subscription plan at any time with no cancellation fee and no responsibility for recurring charges after cancellation, except that if a shipment in a recurring subscription has already been processed prior to such cancellation, your recurring subscription shipment will be cancelled after the aforementioned shipment, and you will still be responsible for payment of the last shipment.

Upon cancellation of any subscription plan, any account created or registered by you for our Store (your “Account”) will not be deleted and you can still sign in to our Store until such time as Waiākea Hawaiian Volcanic Water limits your access to or suspends your Account. You agree that any cancellation, limitation of access and/or suspension of your Account shall be made in Waiākea Hawaiian Volcanic Water’s sole discretion and that Waiākea Hawaiian Volcanic Water shall not be liable to you or any third party for the cancellation, limitation of access and/or suspension of your Account.

For more information about subscription plans available through our Store, please visit our FAQ page on the Site.

 

E-GIFT CARDS

The following terms and conditions apply to Waiākea Hawaiian Volcanic Water’s e-Gift Cards in general and are subject to change at any time at Waiākea Hawaiian Volcanic Water’s sole discretion. Purchase, use or acceptance of a gift card constitutes acceptance of these terms and conditions:

 

• Only redeemable online at waiakea.com for products or services where available.

• All gift cards are for one-time use only.

• Not redeemable for cash, except where required by law.

• Lost, stolen or damaged gift cards will not be replaced.

• Not a credit or debit card.

• For gift card balance, email customerservice@waiakea.com. You will need to have your card number.

• No expiration date, no fees.

• Discounts or coupons are not redeemable toward gift card purchases.

• Resale is strictly prohibited 

• For more information regarding how Waiākea Hawaiian Volcanic Water collects, uses and discloses any information concerning any gift card, please refer to Waiākea Hawaiian Volcanic Water’s Privacy Policy at waiakea.com.

• These terms and conditions are subject to the laws of the State of California without giving effect to the principle of conflicts of laws.

• WAIĀKEA, INC MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE GIFT CARDS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. WAIĀKEA, INC DOES NOT REPRESENT OR WARRANT THAT A GIFT CARD WILL ALWAYS BE ACCESSIBLE OR ACCEPTED.

• All terms enforced except where prohibited by law

  

FRAUD PROTECTION

As part of our order processing procedures for our Store, we may screen received orders for fraud or other types of unauthorized or illegal activity. We reserve the right to refuse to process an order due to suspected fraud or unauthorized or illegal activity. If we suspect fraudulent, unauthorized or illegal activity, we may reject your order or we may contact you at the phone number or email address you provided to confirm your order. We also reserve the right to cancel any accounts or refuse to ship to certain addresses due to suspected fraud or unauthorized or illegal activity. We take these measures to protect our customers as well as ourselves from fraud or other unauthorized or illegal activity.

If at any time you suspect fraud or unauthorized access to your account, please contact us as soon as possible at customerservice@waiakea.com.

 

TRANSACTIONS

If you wish to purchase any product or service made available through our Store (each such purchase, a "Transaction"), you may be asked to supply certain information relevant to your Transaction, including, without limitation, your credit card number, the expiration date of your credit card, your billing address, and your shipping information. You represent and warrant that you have the legal right to use any credit card(s) or other payment method(s) utilized in connection with any Transaction. By submitting such information, you grant to Waiākea Hawaiian Volcanic Water the right to provide such information to third parties for purposes of facilitating the completion of any Transaction initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.

All descriptions, images, references, features, content, specifications, products, and prices of products and services described or depicted in our Store are subject to change at any time without notice. Certain weights, measures, and other descriptions are approximate and are provided for convenience purposes only. The inclusion of any products or services in our Store does not imply or warrant that these products or services will be available. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) regarding the receipt, possession, use, and sale of any item purchased from our Store. By placing an order, you represent that the products ordered will be used only in a lawful manner. Waiākea Hawaiian Volcanic Water reserves the right, with or without prior notice, to do any one or more of the following: (i) limit the available quantity of or discontinue any product or service; (ii) impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion; (iii) bar any user from making or completing any Transaction through our Store; and (iv) refuse to provide any user with any product or service.

You agree that by placing an order through our Store, you are entering into a binding contract with Waiākea Hawaiian Volcanic Water and agree to pay all charges that may be incurred by you or on your behalf through our Store, at the price(s) in effect when such charges are incurred including, without limitation, all shipping and handling charges. In addition, you remain responsible for any taxes that may be applicable to your Transaction.

For more information about ordering products through our Store, please visit our FAQ page on the Site.

 

RISK OF LOSS

Any product purchased from our Store will be shipped by a third-party carrier. As a result, title and risk of loss for such product will pass to you upon our delivery of product to the carrier for shipment and delivery to a customer.

 

RETURNS & REFUNDS

If the product(s) you purchased from our Store becomes damaged while being delivered by a third-party carrier to you, we will replace or refund the product for up to 60 days after the date of your purchase. For any replacements or refunds, please contact us at (855) 924-2532 or email us at customerservice@waiakea.com.

SUBJECT TO THE IMMEDIATELY PRECEDING PARAGRAPH, ONCE YOU PURCHASE A PRODUCT FROM OUR STORE, THE TRANSACTION IS COMPLETE AND WAIĀKEA, INC WILL NOT SUBSEQUENTLY ACCEPT A RETURN OR REFUND OF THAT PRODUCT FOR ANY REASON.

For more information about returns and refunds, please visit our FAQ page on the Site.

 

CONTACTING US

If you have any questions about these Terms, please contact us at (855) 924-2532 or email us at customerservice@waiakea.com.

© 2021 WAIĀKEA, INC. All rights reserved.