TERMS OF USE

Last updated: October 16, 2020


Please carefully read these website Terms of Use (“Agreement”). This Agreement has been prepared as a legally binding agreement between you (“you” or “your”) and the [KONA BREWERY LLC d/b/a Kailua Beverage Company Hawaii, together with our subsidiaries and affiliates], (“Kailua Beverage Company Hawaii,” “we,” or “us”) for the Kailua Beverage CompanyHawaii.com website (the “Site”) and any other website which links to these terms.

Your use of the Site is only on the condition that you agree to abide by the terms contained in this Agreement. By accessing and using the Site, you agree to be bound by the terms and conditions of this Agreement. DO NOT ACCESS THE SITE IN ANY WAY IF YOU DO NOT AGREE TO THESE TERMS OF USE.

THIS AGREEMENT CONTAINS AN ARBITRATION REQUIREMENT AND CLASS ACTION WAIVER. PLEASE SEE SECTION 15 FOR DETAILS.

1. Changes to Agreement

Kailua Beverage Company reserves the right to change or modify this Agreement or any additional terms at its sole discretion at any time. If you do not agree to the modified terms of the Agreement for the Site, you should discontinue your use of the Site. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THIS AGREEMENT, ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING.

2. Your License to Access this Site

The contents of the Site, and the Site as a whole, are intended to provide information regarding Kailua Beverage Company’s various products and services, as set-forth and defined by us and subject to change by us at any time, in our sole discretion. All written content prepared and posted by us, and the Site design, layout, look, appearance, and graphics on the Site, as well as the trademarks, service marks, and logos contained on our Site (collectively, “Kailua Beverage Company Content”) are owned by or licensed to us and are subject to copyright, trademark, and other intellectual property rights under the United States and foreign laws and international conventions. We reserve all rights not expressly granted in, and to, the Site and the Kailua Beverage Company Content.

Except as otherwise provided in this Agreement, no part of the Site and no Kailua Beverage Company Content may be copied, reproduced, uploaded, posted, publicly displayed, transmitted, or distributed in any way to any other computer, server, website, or other medium for publication or distribution or for any commercial use without our prior express written consent.

On the condition that you comply with all your obligations under this Agreement, Kailua Beverage Company grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access the Site, which we may revoke at any time. Any use of the Site in excess of this license is strictly prohibited and constitutes a violation of this Agreement, which may result in the termination of your right to access and use this Site.

3. Restrictions on Participation

As a condition of accessing the Site, you agree not to (a) reproduce, duplicate, copy, sell, resell or exploit any portion of the Site other than as expressly allowed under this Agreement; (b) use Kailua Beverage Company’s name, trademarks, server or other materials in connection with, or to transmit, any unsolicited communications or emails; (c) use any high-volume, automated or electronic means to access the Site (including without limitation, robots, spiders, scripts or web-scraping tools); (d) frame the Site, place pop-up windows over its pages or otherwise affect the display of its page; (e) use any manual process to monitor or copy any of the material on the Site or for any other unauthorized purpose; (f) introduce any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful; or (g) otherwise interfere with or disrupt the Site or servers or networks connected to the Site, or disobey any requirements, procedures, policies, or regulations of networks connected to the Site.

4. User Content

Some features of the Site may allow you to provide content to the Site, such as written comments. This content is shared publicly on the Site. Therefore, all content submitted by you to the Site may be retained by us for as long as we require it in relation to the purposes set out in the Privacy Policy, which can be viewed at www.koleahopewater.com privacy-policy, subject to state law, even after you terminate use. We may continue to disclose such content to third parties, as described in the Privacy Policy.

You agree to use the Site in accordance with all applicable laws. You agree that you will not use the Site for organized partisan political activities.

You also agree that you will not e-mail or post any of the following content (“Prohibited Content”) anywhere on the Site:

  1. Content that defames, harasses, or threatens others

  2. Content that exploits, harms, or attempts to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise

  3. Content that discusses illegal activities with the intent to commit such activities, or encourages others to commit such activities

  4. Content that infringes or misappropriates another’s intellectual property rights, including, but not limited to, copyrights, trademarks, patents, or trade secrets

  5. Content that you do not have the right to disclose under contractual confidentiality obligations or fiduciary duties

  6. Material that contains obscene (i.e., pornographic) language or images

  7. Advertising, promotional materials, or any form of commercial solicitation

  8. Content that impersonates or attempts to impersonate another user, person, or entity (including, without limitation, the use of e-mail addresses associated with any of the foregoing)

  9. Content that otherwise harms other users or visitors to the Sites

  10. Content that is otherwise unlawful or that violates any applicable local, state, national or international law

Although Kailua Beverage Company will not routinely screen or monitor content posted by users to the Site, Kailua Beverage Company reserves the right to remove Prohibited Content of which it becomes aware (though it is under no obligation to do so).

5. Links, Frames, and Metatags

You may link to the home page of the Site for non-commercial purposes as long as the link does not cast us in a false or misleading light. This limited right may be revoked at any time, subject to our sole discretion. You may not frame the content of the Site. You may not use metatags or any other “hidden text” that incorporates Kailua Beverage Company trademarks or name without our express prior written consent.

6. Links to Other Websites

The Site may contain links to other websites, including our affiliates’ websites, but also to third-party websites that we do not control. These other websites may provide opinions, recommendations, or other information from various individuals, organizations, or companies. We are not responsible for the nature, quality, or accuracy of the content or opinions expressed on such websites and we do not investigate, monitor, or check them for quality, accuracy, or completeness. Inclusion of any linked website on the Site does not imply or express an approval or endorsement of the linked website by us or of any of the content, opinions, treatments, information, products, or services provided on these websites. This Agreement and the Privacy Policy do not apply to these other websites. Be sure to read the user agreements and privacy policies that govern your use of these other websites.

7. Your Privacy; Protection of Your Account Credentials

The Kailua Beverage Company Privacy Policy, which can be viewed at www.koleahopwater.com/privacy-policy,, describes how we collect and use personal information about you through the Site. You are responsible for protecting your account log-in credentials from unauthorized access and use. You must promptly notify us by email at AskKolea@kailuabeveragecompany.com

8. System Availability and Errors

You must provide the equipment and Internet connections necessary to access the Site at your own expense. We do not guarantee that the Site will operate with your computer, mobile device, internet service plans, or mobile provider service plans or with any particular computer or other piece of hardware, software, equipment, or device you install on or used with your computer.

There may be times when the Site is unavailable due to technical errors or for maintenance and support activities. We do not represent, warrant, or guarantee that the Site will always be available or is completely free of human or technological errors.

The Site may contain typographical mistakes, inaccuracies, or omissions and some information may not be complete or current. We expressly reserve the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice. We do not make any representation or warranty concerning errors, omissions, delays, or defects in the Site or any information supplied to you via the Site, or that files available through Site are free of viruses, worms, Trojan horses, or other code that include or manifest contaminating or destructive characteristics.

9. Disclaimer

Kailua Beverage Company will host and provide the Site using a commercially reasonable level of skill and care. That said, THE SITE AND ANY INFORMATION, PRODUCTS, OR SERVICES THEREIN ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. Kailua Beverage Company DOES NOT WARRANT, AND HEREBY DISCLAIMS ANY WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE ACCURACY, ADEQUACY, OR COMPLETENESS OF THE SITE, INFORMATION OBTAINED FROM A SITE, OR LINK TO A SITE. Kailua Beverage Company DOES NOT WARRANT THAT THE SITE WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER OR THAT THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

WITHOUT LIMITING THE FOREGOING, Kailua Beverage Company DOES NOT WARRANT THAT (A) THE SITE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR ACHIEVE THE INTENDED PURPOSES, (B) THE SITE WILL NOT EXPERIENCE OUTAGES OR OTHERWISE BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE INFORMATION OR SERVICES OBTAINED THROUGH OR FROM THE SITE WILL BE ACCURATE, COMPLETE, CURRENT, ERROR-FREE, COMPLETELY SECURE, OR RELIABLE, OR (D) THAT DEFECTS IN OR ON THE SITE WILL BE CORRECTED. KAILUA BEVERAGE COMPANY DOES NOT MAKE ANY REPRESENTATION REGARDING YOUR ABILITY TO TRANSMIT AND RECEIVE INFORMATION FROM OR THROUGH THE SITE, AND YOU AGREE AND ACKNOWLEDGE THAT YOUR ABILITY TO ACCESS THE SITE MAY BE IMPAIRED. Kailua Beverage Company DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS OR THE ACCESS OR USE OF THE SITE OR ANY INFORMATION OR SERVICES RELATED TO IT.

YOU ACKNOWLEDGE AND AGREE THAT ANY ACCESS TO OR USE OF THE SITE OR ANY INFORMATION OR SERVICES PROVIDED THEREON IS AT YOUR OWN RISK.

10. Liability Limitation

EXCEPT AS PROHIBITED BY LAW, YOU AGREE THAT Kailua Beverage Company WILL NOT BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR (OR ANY THIRD PARTY’S) USE OR INABILITY TO USE THE SITE, DATA LOSS, YOUR PLACEMENT OF CONTENT ON A SITE, YOUR RELIANCE UPON INFORMATION OBTAINED FROM OR THROUGH THE SITE, OR ANY OTHER POTENTIAL CLAIMS RELATED TO THE SITE.

EXCEPT AS PROHIBITED BY LAW, Kailua Beverage Company WILL NOT HAVE LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR DEFAMATION, ERRORS, LOSS OF DATA, OR INTERRUPTION IN AVAILABILITY OF DATA), ARISING OUT OF OR RELATING TO THIS AGREEMENT, YOUR USE OR INABILITY TO USE THE SITE, DATA LOSS, ANY PURCHASES ON THIS SITE, YOUR PLACEMENT OF CONTENT ON A SITE, OR YOUR RELIANCE UPON INFORMATION OBTAINED FROM OR THROUGH THE SITE, WHETHER BASED IN CONTRACT, TORT, STATUTORY, OR OTHER LAW. KONA BREWING’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OF THE SITE WILL NOT EXCEED TWENTY U.S. DOLLARS ($20).

YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND Kailua Beverage Company, AND THAT THESE LIMITATIONS ARE AN ESSENTIAL BASIS FOR Kailua Beverage Company’S ABILITY TO MAKE THE SITE AVAILABLE TO YOU ON AN ECONOMICALLY FEASIBLE BASIS.

11. Indemnification

You agree to indemnify, defend, and hold harmless Kailua Beverage Company and its affiliates, officers, agents, employees, and assignees from any and all claims, liabilities, expenses and damages, including reasonable attorneys’ fees and costs, made by any third party relating to or arising out of: (a) your use or attempted use of the Site or any content contained therein; (b) your violation of any law or rights of any third party, (c) information or content that you post or otherwise make available on the Site, including without limitation any claim of infringement or misappropriation of intellectual property or other proprietary rights, and (d) any act or omission by you which is a breach of your obligations under this Agreement.

You will have the right to defend and compromise such claim at your expense for the benefit of Kailua Beverage Company; provided, however, you will not have the right to obligate Kailua Beverage Company in any respect in connection with any such settlement without the written consent of Kailua Beverage Company. Notwithstanding the foregoing, if you fail to assume your obligation to defend, Kailua Beverage Company may do so to protect their interests and you will reimburse all costs incurred by Kailua Beverage Company in connection with such defense.

12. Termination Rights

You agree that Kailua Beverage Company, in its sole discretion, may terminate your use of the Site or your participation in it thereof, for any reason or no reason, and that Kailua Beverage Company shall have no liability to you for any such action.

13. Arbitration; Class Action Waiver

ALL DISPUTES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR RELATED TO THE LICENSE GRANTED BY Kailua Beverage Company TO YOU HEREUNDER OR THIS AGREEMENT (EACH A “DISPUTE”) SHALL BE SETTLED BY ARBITRATION IN KANSAS CITY, MISSOURI ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE WITH ITS CONSUMER ARBITRATION RULES. YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT THAT YOU MAY HAVE TO A TRIAL BY JURY REGARDING ANY DISPUTE. YOU UNDERSTAND THAT THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE THAT Kailua Beverage Company MAY ENFORCE. YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT THAT YOU MAY HAVE TO A PUNITIVE OR EXEMPLARY DAMAGES AWARD. ANY ARBITRATION AWARD SHALL BE LIMITED TO ACTUAL DAMAGES AND ATTORNEYS’ FEES. YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT THAT YOU MAY HAVE TO ANY FORM OF CLASS ARBITRATION. YOUR DISPUTE SHALL BE RESOLVED INDIVIDUALLY AND SHALL NOT BE CONSOLIDATED WITH ANY OTHER CLAIM OF ANY OTHER PERSON OR ENTITY. YOU AGREE AND ACKNOWLEDGE THAT YOU MUST INITIATE ANY DISPUTE BY FILING A PROPER DEMAND FOR ARBITRATION WITHIN ONE YEAR OF THE DATE OF YOUR USE OF THE SITE AND THAT YOU CAN BRING NO DISPUTE AFTER THAT TIME. JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. JURISDICTION FOR ANY APPEAL OF AN ARBITRATION AWARD IS APPROPRIATE ONLY IN THE UNITED STATES DISTRICT COURT FOR THE WESTER DISTRICT OF MISSOURI. YOU AGREE AND ACKNOWLEDGE THAT ANY DISPUTE, INCLUDING THE FACT AND OUTCOME OF ARBITRATION, IS STRICTLY CONFIDENTIAL. YOU ALSO AGREE AND ACKNOWLEDGE THAT ANY ARBITRATOR MUST AGREE TO THE SAME STRICT CONFIDENTIALITY. YOU AGREE AND ACKNOWLEDGE THAT Kailua Beverage Company WOULD NOT PERMIT USE OF ITS SITE ABSENT YOUR AGREEMENT TO ARBITRATE AND WAIVER OF YOUR RIGHT TO A TRIAL BY JURY.

14. General Legal Terms

If a court of law finds that any provision of this Agreement is invalid or unenforceable, the remaining provisions will continue to be valid and enforceable. We may assign this contract at any time without notice to you. You may not assign this contact to anyone else.

Subject to Disclaimer and Limitation of Liability section above, in any dispute with us, your sole remedy is to stop using the Site. This includes any dispute related to, or arising out of: (a) any term of this Agreement or our enforcement or application of this Agreement; (b) any of our policies or practices, including our Privacy Policy, or our enforcement or application of these policies; (c) the content available on the Site or the Internet or any change in content provided by us; (d) your ability to access or use the Site; or (e) the amount or type of fees, surcharges, applicable taxes, billing methods, or any change to the fees, applicable taxes, surcharges or billing methods.

You agree that the laws of the State of Missouri govern this Agreement and any claim or dispute that you may have against us, without regard to Missouri’s conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. You further agree that any disputes or claims that you may have against us reside in and will be resolved by a state or federal court located in Jackson County, Missouri and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.

PLEASE NOTE THAT BY AGREEING TO THIS AGREEMENT, YOU ARE: (x) WAIVING CLAIMS THAT YOU MIGHT OTHERWISE HAVE AGAINST US BASED ON THE LAWS OF OTHER JURISDICTIONS, INCLUDING YOUR OWN; (y) IRREVOCABLY CONSENTING TO THE EXCLUSIVE JURISDICTION OF, AND VENUE IN, STATE OR FEDERAL COURTS IN THE STATE OF MISSOURI OVER ANY DISPUTES OR CLAIMS YOU HAVE WITH US; AND (z) SUBMITTING YOURSELF TO THE PERSONAL JURISDICTION OF COURTS AND ARBITRATION LOCATED IN THE STATE OF MISSOURI FOR THE PURPOSE OF RESOLVING ANY SUCH DISPUTES OR CLAIMS.

Registrations, agreements, and terms presented by us electronically to you have the same effect as one in writing and are legally enforceable as a signed writing. You also consent to receive all communications regarding our Site electronically from us. The delivery of any communication from us is effective when sent by us, regardless of when you receive or read the communication. In addition, we are not responsible for communications that do not reach you if you have not provided us with your current contact information. If you decided not to receive notices from us electronically, we may terminate your access to the Site.

15. Contact Kailua Beverage Company.

If you have any questions or need to contact us for any reason relating to this Agreement, please contact us at: AskKolea@kailuabeveragecompany.com or 74-5612 Pawai Pl, Kailua-Kona, HI 96740.