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Terms and Conditions

Fair Wind, Inc., Kona Sunrise Charters, Inc., Charisma Hawaii, Inc., and Keauhou Boating LTD.

These Terms and Conditions apply to the services and websites of Fair Wind, Inc., Kona Sunrise Charters, Inc., Charisma Hawaii, Inc., Keauhou Boating, LTD., and each of its subsidiaries and controlled affiliates (collectively, the “Company”) and the Company’s website www.fair-wind.com (the “Application”). Please carefully read these Terms and Conditions and the Company’s Privacy Policy located at https://www.fair-wind.com/privacy-policy , which is incorporated into these Terms and Conditions by this reference.

THESE TERMS AND CONDITIONS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND CONDITIONS WITH RESPECT TO DISPUTES YOU MAY HAVE WITH US.

THE COMPANY IS LOCATED IN THE UNITED STATES. IF YOU ARE LOCATED IN THE EUROPEAN ECONOMIC AREA, SWITZERLAND OR UNITED KINGDOM, YOU CONSENT TO THE TRANSFER OF YOUR PERSONAL DATA TO THE UNITED STATES.

The Application is the property of the Company and its licensors. By using the Application, you agree to these Terms and Conditions, our Privacy Policy and all applicable laws and regulations. If you do not agree to these Terms and Conditions, do not use the Application.

The Application is not intended for the use of children under 18 and no such person is authorized to use it. By using the Application, you are representing that you are at least 18 years old. You also represent, by accessing or using the Application, that you are of legal age to enter into legal agreements, or if you are not, that you have obtained your parent’s or legal guardian’s consent to accept these Terms and Conditions.
The Company reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms and Conditions, at any time. It is your responsibility to check these Terms and Conditions periodically for changes. Your continued use of the Application following the posting of changes indicates your agreement to and acceptance of the changes.

Privacy and Data Security

Please refer to the Company’s Privacy Policy at https://www.fair-wind.com/privacy-policy for information on our data practices, including what information we collect, how we collect, use and disclose information from our users, and where our processing is located. The Privacy Policy is incorporated into these Terms and Conditions by this reference. Additionally, by using the Application, you acknowledge and agree that Internet transmissions are never completely private or secure. You understand that any message or information you send to the Application may be intercepted by others, and users assume the risk of security breaches and all consequences resulting from them. Please do not send us any sensitive personal information.

Content

All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code (collectively, “Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained on the Application is owned, controlled or licensed by or to the Company and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights. Except as expressly provided in these Terms and Conditions, no part of the Application and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, without the Company’s express prior written consent.

User Submissions, Feedback and Information

You acknowledge and agree that any submission (including photographs, motion pictures/video footage, and sound recordings), feedback, comments or suggestions you may provide regarding the Company either directly or indirectly (for example, through the use on a third-party social media site of a company-designated hashtag) (collectively, “Submissions”) is non-confidential and non-proprietary, shall be treated as public information, may be shared with others on other sites and platforms and be in compliance with these Terms and Conditions. Submissions that constitute feedback, comments or suggestions will be the sole and exclusive property of the Company and you hereby irrevocably assign to us all of your right, title and interest in and to all such Submissions, and the Company shall have an unrestricted, irrevocable, world-wide, royalty-free right to use, communicate, reproduce, publish, display, distribute and exploit such Submissions in any manner it chooses. With respect to all other Submissions, including photographs, motion pictures/video footage, and sound recordings (collectively “the Works”), you hereby grant the Company an irrevocable, worldwide and perpetual license to use such Submissions, including my name, image, likeness, and sound of my voice, with or without my name, for any lawful purpose, including without limitation in the Company’s advertising and marketing, including without limitation websites, blogs, social media channels, and advertising channels, without any restriction, geographical, temporal, or otherwise. With respect to my Submission, I hereby waive (a) any right to inspect or approve the Submissions prior to their publication; (b) any claim or right to royalties or other compensation relating to the use of the Submission; and (c) any rights of publicity or privacy, copyright rights, or other intellectual property rights in the Submissions. I further release and agree to hold harmless the Company and its contractors involved in the creation or publication of advertising or marketing materials in which the Submissions appear from liability for any claims, demands, or causes of action by me, my heirs, representatives, or executors, or any other person on my behalf, or any third party, arising out of or in connection with the Submissions. Your submission constitutes a warranty and indemnity that you have sufficient license and/or other rights in the content to allow all desired use by the Company. User consents, for themselves and on behalf of any children whose information such User submits to the Company, to the use by the Company of the information in compliance with all applicable laws. You are responsible for any Submission you provide and for any consequences arising therefrom. The Company shall not be liable for any damages resulting from the use or misuse by any third party of a Submission, including any personal data provided in a Submission.

We reserve the right in our sole discretion to: (a) review Submissions before allowing them to be posted on the Application; (b) to monitor, filter, edit or remove Submissions; and (c) post or not post Submissions provided to us.

Copyright Policy

We do not permit copyright infringing activities and infringement of intellectual property rights on the Application and will remove any such content if properly notified that such content infringes on another’s intellectual property rights. Do not submit material that infringes copyright, is pornographic, obscene, violent or otherwise violates these Terms and Conditions or applicable law. If you are a copyright owner or an agent thereof and believe that any content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (DMCA) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

  • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright’s interest;
  • description of the copyrighted work that you claim has been infringed;
  • description of the material that you claim is infringing and where it is located on the Service;
  • identification of the URL or other specific location on the Site where the material that you claim is infringing is located;
  • your address, telephone number, and email address;
  • statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
  • statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the
  • copyright owner’s behalf.

You can contact our Copyright Agent via email at aloha@fair-wind.com or by mail at Copyright Agent, c/o Fair Wind, Inc., 78-6775 Makenawai Street, #A, Kailua-Kona HI 96740.
Upon receipt of such notice, we will investigate and remove material if necessary. You will be notified of the results of such investigation.

Your Use of the Application

In connection with your use of the Application, you agree that you will not:

  • post, upload, publish, submit or transmit any material that: (a) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (b) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) is fraudulent, false, misleading or deceptive; (d) is defamatory, obscene, pornographic, vulgar or offensive; (e) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (f) is violent or threatening or promotes violence or actions that are threatening to any other person; or (g) promotes illegal or harmful activities or substances;
  • interfere with or damage the Application, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
  • use the Application to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, personal contact information or credit, debit, calling card or account numbers;
  • violate any local, state, provincial, national, or other law or regulation, or any order of a court;
  • use manual or automated software, devices, scripts robots, or other means or processes, including automated scripts, to collect information or otherwise interact with the Application or to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Application;
  • use, display, mirror or frame the Application, or any individual element within the Application, the Company’s name, any Company trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without the Company’s express written consent;
  • access, tamper with, or use non-public areas of the Application, the Company’s computer systems, or the technical delivery systems of the Company’s providers;
  • attempt to probe, scan, or test the vulnerability of any Company system or network or breach any security or authentication measures;
  • avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by the Company or any of the Company’s providers or any other third party (including another user) to protect the Application or any of the content on the Application;
  • attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Application or Content; or
  • advocate, encourage, or assist any third party in doing any of the foregoing.

Any conduct by a user that in our discretion restricts or inhibits any other user from using or enjoying the Application and its services is expressly prohibited.

The Company reserves the right, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Application, or any portion of the Application, for any reason; (2) to modify or change the Application, or any portion of the Application, and any applicable policies or terms; and (3) to interrupt the operation of the Application, or any portion of the Application, as necessary to perform routine or non-routine maintenance, error correction, or other changes.

Security

While the Company believes and intends that its information security practices reflect good practice, there is no such thing as perfect information security. As such, users assume the risk of security breaches and all consequences resulting from them.

Links to Other Sites

This Application may contain links to other independent third-party websites (“Linked Sites”). These Linked Sites are provided solely as a convenience to our visitors. Such Linked Sites are not under the Company’s control, and the Company is not responsible for and does not endorse the content of such Linked Sites, including any information or materials contained on such Linked Sites.

Purchase of Alcohol

Some of the Company’s charters and cruises may offer alcoholic beverages which may only be purchased and consumed by individuals who are at least twenty-one (21) years of age. Identification is required.

Payments; Refunds

Prices on the Application to be purchased by payment card are denominated, and shall be paid for, in United States Dollars. The Company is U.S.-based, so please be advised that your payment card issuer may charge an additional fee for payments in international currencies. You may receive a full refund for a charter or cruise if you cancel at least 48 hours in advance.

Disclaimer

THE APPLICATION, ITS CONTENT, AND THE COMPANY’S SERVICES, CHARTERS AND CRUISES ARE PROVIDED “AS IS, AS AVAILABLE.” ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXCLUDED TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW.

WEATHER DISCLAIMER: To ensure the safety of our customers, all of our trips are weather dependent. At the captain’s discretion, trips may be re-scheduled, or destinations may be changed to ensure customer safety, comfort, and satisfaction. The above disclaimers apply to any damages, liability or injuries, whether for breach of contract, tort, negligence or any other cause of action.

RELEASE OF LIABILITY, WAIVER OF CLAIMS, EXPRESS ASSUMPTION OF RISK AND INDEMNITY AGREEMENT

EXPRESS ASSUMPTION OF RISK ASSOCIATED WITH SWIMMING, SNORKELING AND RELATED ACTIVITIES

I do hereby affirm and acknowledge that I am fully aware of the inherent hazards and risks associated with Swimming, Snorkeling, DPV usage, Stand Up Paddleboard usage, Whale Watching, and Riding on a Boat. I fully understand that these risks can lead to severe injury and even loss of life. I understand that swimming, snorkeling, DPV usage, Stand Up Paddleboard usage, whale watching, boating activities may be conducted at a site that is remote from competent medical assistance. Despite the potential hazards and dangers associated with the activity of swimming, snorkeling, DPV usage, Stand Up Paddleboard usage, whale watching, and boating I wish to proceed and I freely accept and expressly assume all risk, dangers and hazards that may arise from these activities which could result in personal injury, loss of life and property damage to me.

RELEASE OF LIABILITY, WAIVER OF CLAIMS AND INDEMNITY AGREEMENT:

In consideration of being allowed to participate in Swimming, Snorkeling, DPV usage, Stand Up Paddleboard usage, Whale Watching, and Boating activities as well as the use of any of the facilities and the use of the equipment of Fair Wind, Inc., Kona Sunrise Charters, Inc., Charisma Hawaii, Inc., Keauhou Boating LTD, its employees or entities, I hereby agree as follows:

1. TO WAIVE AND RELEASE ANY AND ALL CLAIMS that I may have based upon negligence, active or passive, with the exception of intentional, wanton or willful misconduct.

2. To release Kona Sunrise Charters, Inc. and Fair Wind, Inc., Charisma Hawaii, Inc., and Keauhou Boating LTD, their officers, directors, employees, representatives, agents, and volunteers, from any liability and responsibility, whatsoever, for any claims or causes of action that I, my estate, heirs executors or assigns may have for personal injury, property damage or wrongful death arising from Swimming, Snorkeling, DPV usage, Stand Up Paddleboard usage, Whale Watching and Boating activities whether caused by active or passive negligence. By executing this document, I agree to hold Kona Sunrise Charters, Inc., Fair Wind Inc., Charisma Hawaii, Inc., and Keauhou Boating LTD harmless for any injury or loss of life, which may occur to me during Swimming, Snorkeling, DPV usage, Stand Up Paddleboard usage, Whale Watching, and Boating activities.

3. If any provision of this release is found to be unenforceable or invalid, that provision shall be severed from this contract. The remainder of this contract will then be construed as though the unenforceable provision had never been contained in this document. I hereby declare that I am of legal age and am competent to sign this Agreement or, if not, that my parent or legal guardian shall sign on my behalf, and that my parent or legal guardian is in complete understanding and concurrence with this agreement.

I HAVE READ THIS AGREEMENT, I UNDERSTAND IT, I AGREE TO BE BOUND BY IT.

Violation of These Terms and Conditions

The Company may disclose any information we have about you (including your identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Application or participation in our charters and cruises, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) the Company’s rights or property, or the rights or property of visitors to or users of the Application or other participants in our charters and cruises. The Company reserves the right at all times to disclose any information that the Company deems necessary to comply with any applicable law, regulation, legal process or governmental request. Company also may disclose your information when the Company determines that applicable law requires or permits such disclosure.

You agree that the Company may, in its sole discretion and without prior notice, terminate your access to the Application or the services and/or block your future access to the Application or the services if we determine that you have violated these Terms and Conditions or other agreements or guidelines which may be associated with your use of the Application or services. You also agree that any violation by you of these Terms and Conditions will cause irreparable harm to the Company for which monetary damages would be inadequate, and you consent to the Company obtaining any injunctive or equitable relief that the Company deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies the Company may have at law or in equity.

Governing Law; Dispute Resolution

You agree that all matters relating to your access to or use of the Application and your participation in the Company’s cruises and charters, including all disputes, will be governed by the laws of the United States and by the laws of the State of Hawaii excluding: (1) its conflicts of law principles; and (2) the United Nations Convention on Contracts for the International Sale of Goods. Any dispute arising hereunder or relating hereto shall be resolved by binding arbitration in Hawaii governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively the “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms and Conditions, and will be administered by the AAA and decided by a single neutral arbitrator.

Notwithstanding the paragraph above, we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our rights to (i) bring an individual action in U.S. small claims court, (ii) pursue enforcement actions through applicable U.S. federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a U.S. court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims. To the extent that any lawsuit or court proceeding is permitted under the Terms and Conditions, you agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located in Hawaii for the purpose of litigating all such disputes. You agree that any claim under these Terms and Conditions must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred. You agree to the admissibility of computer records and electronic evidence in any dispute herein. YOU AGREE THAT NO CLASS ACTION MAY BE PURSUED OR MAINTAINED WITH RESPECT TO ANY DISPUTE REGARDING THESE TERMS AND CONDITIONS.

Users Outside of the United States

The Company is based in the United States. Although the Application is accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or on the Application are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. If you choose to access the Application from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws.

Miscellaneous

You may preserve these Terms and Conditions in written form by printing it for your records, and you waive any other requirement that these Terms and Conditions be evidenced by a written document. You may not use or export or re-export any Content or any copy or adaptation of such Content, or any product or service offered on the Application, in violation of any applicable laws or regulations, including without limitation United States export laws and regulations.

All provisions of these Terms and Conditions are severable, and the unenforceability or invalidity of any of the provisions will not affect the enforceability or validity of the remaining provisions. These Terms and Conditions, together with the Privacy Policy at https://www.fair-wind.com/privacy-policy , any other legal notices published by the Company, and any physical documents executed at the time of a charter or cruise constitute the entire agreement between you and the Company with regard to your use of the Application and your participation in the Company’s charters and cruises. The Company’s failure to insist on or enforce strict performance of these Terms and Conditions shall not be deemed a waiver by the Company of any provision or any right it has to enforce these Terms and Conditions. Any such waiver must be in writing in order to be effective. These Terms and Conditions shall not be interpreted or construed to confer any rights or remedies on any third parties.

Canada

The parties declare that they have required that these Terms and Conditions and all documents related hereto, either present or future, be drawn up in the English language only. Les parties déclarent par les présentes qu’elles exigent que cette entente et tous les documents y afferents, soit pour le present ou le future, soient rédigés en langue anglaise seulement.

Notice for California Users

Under California Civil Code Section 1789.3, California website users 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 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.

Questions and Contact Information

Fair Wind, Inc., Kona Sunrise Charters, Inc., Charisma Hawaii, Inc., and Keauhou Boating LTD, are operated from:

78-7130 Kaleiopapa Street, Kailua Kona, HI 96740

Fair Wind, Inc., Kona Sunrise Charters, Inc., Charisma Hawaii, Inc., and Keauhou Boating LTD, registered office is located at:

78-6775 Makenawai Street, #A, Kailua Kona, HI 96740

Please contact us if you have any questions about our Terms and Conditions. You may contact us by sending correspondence to the foregoing address or by emailing us at aloha@fair-wind.com

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