PEMCO Limited, is a Hawaii Corporation (hereinafter collectively “PEMCO” or “Company,” or “our,” or “us”). PEMCO develops, owns, controls, and provides access to various materials through its websites (“Websites”). The Terms shall govern the use of the Websites unless specifically stated. By accessing the Websites, utilizing any feature of the Websites, or by accepting, or downloading any information or content from the Websites, you agree to the Terms. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS, IMMEDIATELY CEASE USE OF THE WEBSITES.
1. Acceptance of Terms
Anyone accessing, utilizing, accepting, or downloading any information or content (hereinafter “User”) shall be subject to the Terms. Accessing, utilizing, accepting, or downloading any information or content of the Websites (hereinafter collectively “Use”) shall constitute acceptance of the Terms by User. PEMCO reserves the right to modify the Terms at any time without notice and User agrees that it is the sole responsibility of the User to review the Terms to become aware of any additions, revisions, or modifications.
2. Description of Websites
The Websites provide Users with access to an assortment of content and online resources, including but not limited to inquiry forms and newsletter signup. Unless explicitly stated otherwise, the Websites, including the release of new or specialized Company web based products, services, or features, are subject to the Terms. PEMCO may add, change, remove, suspend, discontinue, and impose limitations on features and services, as well as restrict access to any aspect of the Websites at any time without notice or liability. The Websites may be accessed via the Internet; however, PEMCO will not provide any equipment necessary in order for the User to access the Websites.
3. Intellectual Property License
The past, present and future Websites content, including, without limitation, grouping, organization, graphics, text, images, designs, compilations, advertising copy, trademarks, logos, domain names, trade names, service marks, trade identities, any other copyrightable material (including source and object code) and all other materials related to the Websites, including but not limited to “Look and Feel” of the Websites (hereinafter collectively “Content”) are protected by applicable copyrights and other proprietary (including, but not limited to, intellectual property) rights. The Content is the property of PEMCO, its subsidiaries, parent company, affiliates, and/or its respective licensors. Except as expressly set forth in the Terms or expressly granted to the User in writing by PEMCO, no rights in the Content shall be granted to the User. The copying, reproduction, rearrangement, sales, leasing, renting, distribution, redistribution, modification, exchanging, creating of derivative works, uploading, posting, transmitting, or publication by a User of Content except pursuant to the limited rights granted hereunder, is strictly prohibited. The User further agrees to abide by any and all additional copyright notices, information, or restrictions contained in any part of the Websites. Any copying, archiving or storing of any of the Websites for any purpose other than expressly permitted by the Terms is prohibited unless prior written permission from Company and/or the respective applicable copyright holder, if any, is received.
4. Acceptable Use of Websites
5. Prohibited Use of Websites
User represents, warrants and agrees that User shall not (a) duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rebrand, otherwise transfer or commercially exploit PEMCO except as expressly permitted in the Terms; (b) utilize information, Content or any data to provide any service or product that is competitive, in PEMCO’s sole discretion, with PEMCO; (c) Imply or state that User is affiliated with or endorsed by PEMCO unless User has entered into a written agreement with PEMCO; (d) Adapt, modify or create derivative works based on Content or other User’s Content, in whole or part without explicit attribution to PEMCO as the source material and with PEMCO’s explicit permission; (e) Engage in “framing,” “mirroring,” or “archiving” or otherwise simulating the appearance or function of the Websites or attempt to or access Websites by any means other than through the interface provided by PEMCO; (f) Infringe or use PEMCO’s brand, logos and/or trademarks, including, without limitation, using the word “PEMCO” in any business name, email, or URL or including PEMCO’s trademarks and logos on any website without authorization.
6. Copyrights and Copyright Agents
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide PEMCO’s copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. § 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit PEMCO to locate the material; (d) information reasonably sufficient to permit PEMCO to contact the complaining party; (e) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
PEMCO’s copyright agent for notice of claims of copyright infringement on or regarding the Websites can be reached as follows:
1632 King Street
Honolulu, HI 96826
NOTE: This contact information is for inquiries regarding potential copyright infringement only.
7. Disclaimer of Warranties and Liability
THE WEBSITES, INCLUDING, WITHOUT LIMITATION, ALL CONTENT ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHER, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, COMPANY ENTITIES AND INDIVIDUALS MAKE NO REPRESENTATION OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER (EXPRESS OR IMPLIED) ABOUT: (A) THE WEBSITES; (B) THE CONTENT ON AND PROVIDED THROUGH THE WEBSITES; (C) PEMCO SPECIFICALLY DISCLAIMS SUCH WARRANTIES. USER UNDERSTANDS THAT BY USING ANY OF THE FEATURES OF THE WEBSITES, USER ACTS AT THEIR OWN RISK.
COMPANY ENTITIES AND INDIVIDUALS SHALL NOT BE LIABLE FOR THE USE OF THE WEBSITES INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO THE TERMS.
USER UNDERSTANDS AND AGREES THAT PEMCO LIMITS ITS LIABILITY IN CONNECTION WITH USERS USE OF THE WEBSITES AS SET FORTH BELOW: UNDER NO CIRCUMSTANCES SHALL COMPANY ENTITIES AND INDIVIDUALS BE LIABLE TO USER FOR ANY LOSS OR DAMAGES OF ANY KIND THAT ARE DIRECTLY OR INDIRECTLY RELATED TO (1) THE WEBSITES, OR THE CONTENT; (2) THE USE OF, INABILITY TO USE, OR PERFORMANCE OF THE WEBSITES; (3) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY PEMCO OR LAW ENFORCEMENT AUTHORITIES REGARDING USER’S USE OF THE WEBSITES OR CONTENT; (4) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OWNERS; (5) ANY ERRORS OR OMISSIONS IN THE WEBSITES’ TECHNICAL OPERATION, EVEN IF FORESEEABLE OR EVEN IF THE COMPANY ENTITIES AND INDIVIDUALS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE WEBSITES). IN NO EVENT WILL THE COMPANY ENTITIES AND INDIVIDUALS BE LIABLE TO USER OR ANYONE ELSE FOR ANY LOSS OR INJURY.
THE COMPANY ENTITIES AND INDIVIDUALS ARE NOT RESPONSIBLE FOR ANY DAMAGE TO ANY INTERFACE UTILIZED BY USER TO USE THE WEBSITES INCLUDING BUT NOT LIMITED TO DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION.
USE BY THE USER OF THE WEBSITES CONSTITUTES USER’S ACCEPTANCE AND UNDERSTANDING THAT ACCESS TO AND USE OF THE WEBSITES IS AT USER’S RISK. IF USER IS DISSATISFIED WITH THE WEBSITES OR ANY OF THE CONTENT, USER’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE.
USER FURTHER UNDERSTANDS AND AGREES THAT IN THE EVENT ANY DAMAGES, LOSSES OR INJURIES ARISE OUT OF COMPANY ENTITIES AND INDIVIDUALS’ ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO USER ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE USER TO AN INJUNCTION OF ANY NATURE AGAINST THE COMPANY ENTITIES AND INDIVIDUALS OR THE WEBSITES.
USER UNDERSTANDS AND AGREES THAT USE OF THE WEBSITES CONSTITUTES A WAIVER OF USER’S RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED.
USER AGREES AND ACKNOWLEDGES BY USE OF THE WEBSITES THAT IN THE EVENT ANY LIABILITY IS FOUND BY A COURT OF COMPETENT JURISDICTION TO THE USER, THAT THE COMPANY ENTITIES AND INDIVIDUAL’S TOTAL LIABILITY SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00).
User agrees to defend, indemnify and hold harmless the Company entities and individuals with respect to any and all costs, claims, demands, investigations, liabilities, losses, damages, judgments, settlements, costs and expenses, including attorneys’ fees arising out of or in connection with the Terms, including, without limitation: (a) User’s Use of the Websites; (b) User’s violation of the Terms or any law, rule or regulation; or (c) User’s Use of the Content User shall fully cooperate as required by PEMCO in the defense of any claim. Notwithstanding the foregoing, PEMCO retains the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of action which are brought against PEMCO herein under the terms and provisions of this Section 8 and in no event shall User settle any such claim without PEMCO’s prior written approval.
9. Governing Law
The Terms shall be governed by and construed under the laws of the State of Georgia. In the event that any paragraph or paragraphs of the Terms shall be declared invalid or void by any court, such declaration shall not invalidate the Terms and all other paragraphs of the Terms shall remain in full force and effect.
10. Jurisdiction and Venue
User waives all rights to trial by jury in any action or proceeding instituted in connection with the Terms and/or the Websites. Any controversy or claim arising out of or relating to the Terms and/or the Websites shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in the State of Georgia, in the County of Fulton, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Any matters or proceedings that are not subject to arbitration as set forth in this Section 10 of the Terms and/or for entering any judgment on an arbitration award, shall take place in the State of Georgia, County of Fulton. User waives the defense of forum non conveniens.
User is solely responsible for compliance with the Terms, applicable laws, rules, and regulations in connection with the Use of the Websites and the Content, including, without limitation, those governing User’s transmission or Use of any service, software or data. The Terms and any applicable end user license or similar agreements contain the sole and entire agreement between the parties with respect to the Websites, the Content, the services offered and supersedes any and all other prior written or oral agreements between or amongst the parties. The section titles in the Terms are for convenience only and do not have any legal or contractual effect. User agrees that the Terms will not be construed against PEMCO by virtue of having drafted the Terms. If any provision of the Terms shall be held invalid or unenforceable by any court of competent jurisdiction or as a result of future legislative action, such holding or action shall be strictly construed and shall not affect the validity or effect of any other provision of the Terms. No waiver on the part of PEMCO of any of the Terms will be of any force or effect unless made in writing and signed by a duly authorized officer of PEMCO.
User understands and agrees that PEMCO shall determine compliance with the Terms in its sole discretion. PEMCO reserves the right to deny access to all or part of the Websites and to deny access to any person in its sole discretion without notice or liability of any kind. Any violation of the Terms may be referred to law enforcement authorities. Upon termination of User’s access to the Websites, or upon demand by Company, User must destroy all materials obtained from this Websites.