Terms of Service
Welcome to Shaka Guide!
Shaka Guide, LLC (“Shaka Guide”, “We”, “Our”) provides our website located at www.shakaguide.com (the “Site”) and our Tour Guide services accessible via our Site and our mobile device application (“App”), namely Shaka Guide Oahu, Shaka Guide Big Island – also known as Shaka Guide BigIsle, Shaka Guide Maui, Shaka Guide Kauai, Shaka Guide’s website, and all other products and services (collectively., the “Service”) and made available to you by Shaka Guide.
To make these Terms easier to read, the Site, our Tours, services and App are collectively called the “Services.” Please read these Terms of Service (the “Terms”) carefully because they govern your use of our Services.
Agreement to Terms
By using or visiting www.shakaguide.com, or any content, functionality and services made available to you on or through the website, whether as a registered user or as a guest or by agreeing to accept these Terms of Service, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, please do not use the website or the Services made available on or through the website.
Changes to Terms or Services
We may modify the Terms at any time, at our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications. You must review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving, we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Unless you opt-out of arbitration within 30 days of the date you first agree to these terms by following the opt-out procedure specified in the “Arbitration” section below, and except for certain types of disputes described in the “Arbitration“ section below, you agree that disputes between you and Shaka Guide will be resolved by binding, individual arbitration and you are waiving your right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.
You may use the Services only if you are 18 years or older and are not barred from using the Services under applicable law. If you are between the ages of 13 and 18 or the age of legal majority under applicable law, you may only make use of the Service under the supervision of a legal guardian or a parent who agrees to be bound by the Terms herein.
Shaka Guide offers users access to self-guided, location-based audio tours with authentic storytelling, music by local artists and an immersive tour experience. Our tours are available for download across our platforms and once downloaded, our tours can work offline meaning you can rest assured that even if you lose data service, our tour guides will get you where you need to go.
Registration and Account Security
In order to access and make use of certain features of the Services, you will have to create a user account (“Account”). You can do this via the App or the Site or through your account with certain third-party social networking services such as Facebook or Google (each, an “SNS Account”). If you choose the SNS Account option we’ll create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account.
You agree that you won’t disclose your Account password to anyone and you will notify us immediately of any unauthorized use of your Account. You are responsible for the security of your user account and all activities that occur under your Account, whether or not you know about them.
Using the Services
Via the Services, users can select from a variety of tour options and purchase a Tour Guide. Not all activities described on the Services or Products may be suitable for everyone.
The rights to access and use the service provided by Shaka Guide is revoked in jurisdictions where it may be prohibited if any.
Purchases, Fees, Payment, Subscriptions, Billing, Renewal and Cancellation
Purchases and Fees
Some of the services offered by Shaka Guide may be made accessible for free while some content on the platform is offered for a fee – while other Services may be free with optional paid upgrades (collectively, “Paid Services”). By using a Paid Service, you agree to pay the specified fees. Payments for the Tours and all other in-app purchase products are due at the time of download or purchase via the third party marketplace from which you made the purchase or download. The total value of your transaction may be subject to taxes, duties and other fees.
A description of features associated with purchase is available to you via the Services. When you purchase a service (each, a “Transaction”), we may ask you to supply additional information relevant to your Transaction, such as your credit card number, the expiration date of your credit card and your address(es) for billing and delivery (such information, “Payment Information”).
You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. The amounts due and payable by you for a Transaction through the Services will be presented to you before you complete your booking.
Use of Third-Party Payment Service Providers
Purchases of contents made available to you via the Shaka Guide platform can be made using credit cards or other available payment methods as may be made available.
If you choose to initiate a Transaction via the Services, you authorize us to provide your Payment Information to third-party service providers so we can complete your Transaction and agree
(a) to pay the applicable fees and any taxes;
(b) that Shaka Guide may charge your credit card or third party payment processing account, including, but not limited to, your account with the app store or distribution platform (like the Apple App Store, Google Play or the Amazon Appstore) where the App is made available (each, an “App Provider”), for verification, pre-authorization and payment purposes; and
(c) to bear any additional charges that your App Provider, bank or other financial service providers may levy on you as well as any taxes or fees that may apply to your order.
You’ll receive a confirmation email after we confirm the payment for your order. Your order is not binding on Shaka Guide until accepted and confirmed by Shaka Guide.
All payments made are non-refundable and non-transferable except as expressly provided in these Terms. If you have any concerns or objections regarding the service, charges, you agree to raise them with us first and you agree not to cancel or reject any credit card or third party payment processing charges unless you have made a reasonable attempt at resolving the matter directly with Shaka Guide.
While we offer a money-back satisfaction guarantee offer, refunds are issued at Shaka Guide sole discretion, unless otherwise required by applicable law. Any refunds request, refunds, or disputes shall be processed through the same third-party marketplace.
Shaka Guide reserves the right to not process or cancel your order in certain circumstances, for example, if your credit card is declined if we suspect the request or order is fraudulent, or in other circumstances, Shaka Guide deems appropriate in its sole discretion. Shaka Guide also reserves the right, in its sole discretion, to take steps to verify your identity in connection with your order. You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). Shaka Guide will either not charge you or refund the charges for orders that we do not process or cancel.
Changes to Tour Prices
We reserve the right to adjust pricing for our service or any components thereof in any manner and at any time as we may determine in our sole discretion. All discounts, bundles and promotions advertised on the services or in any promotional notice to you are subject to change without notice. Except as otherwise expressly provided for in these Terms of Service, any material price increases to your service will take effect following notice to you.
Changes to the pricing terms will not apply retroactively and will only apply for future bookings after such changed pricing terms have been communicated to you.
You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Shaka Guide regarding future functionality or features.
Content Ownership and Intellectual Property Rights
The Service and its entire contents, features, and functionality (including all information, software, maps, voice-over, text, displays, images, video, and audio, and the design, selection, and arrangement of it) are owned by the Shaka Guide, its licensors, or other providers of that material and are protected by copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
This agreement permits you to use the Website for your personal, noncommercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on the Website, except as follows:
- Your computer may temporarily store copies of those materials in RAM incidental to your accessing and viewing those materials.
- You may store files that are automatically cached by your Web browser for display enhancement purposes.
- You may print or download one copy of a reasonable number of pages of the Website for your own personal, noncommercial use and not for further reproduction, publication, or distribution.
- You may download or print a copy of any part of the paid content to which you have properly gained access solely for your personal, noncommercial use and not for further reproduction, publication, or distribution.
- If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, noncommercial use, on condition that you agree to be bound by the Company’s end user license agreement for those applications.
You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
Digital Millennium Copyright Act
If you are a copyright owner or an agent thereof and believe that any Content on any of the Shaka Guide operated apps and services infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") to have the content removed. Please provide our Copyright Agent with the following information in writing:
- Identification of the copyrighted work claimed to have been infringed. Please provide us the necessary information, such as URL, name and description of the work, to permit the service provider to locate the infringed material.
- Your contact information, such as your physical address, telephone number, and an electronic mail, to permit us to contact you.
- A statement that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Your physical or electronic signature on the notification.
You may direct copyright infringement notices to us at email@example.com.
Software Made Available on the App
Unless otherwise specified herein or elsewhere, the App we make available to you is made solely to provide you with the purchased service and provide information regarding the Shaka Guide Tour services, that of its partners and other products. The App is controlled by Shaka Guide and we make no representation that the materials made available on the App are available for use of appropriate for use outside of Hawaii.
You understand and agree that any software or services such as the Tours made available to download from the App (“Software”) is the copyrighted work of Shaka Guide, or Shaka Guide partners, affiliates or other third party software as identified. Your download and use of such software are governed by the terms made available herein.
Please note that all Software and Tours contained on the App, are owned by Shaka Guide and/or its partners, and it is protected by copyright laws of the United States and international treaty provisions. Any reproduction or redistribution of the Software or Tours is expressly prohibited and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent permitted by applicable laws.
Rights and Terms for App
Rights in App Granted by Shaka Guide
Subject to your compliance with these Terms, Shaka Guide grants you a limited non-exclusive, non-transferable, non-sublicenseable license to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. Shaka Guide reserves all rights in and to the App not expressly granted to you under these Terms. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means.
User-Generated Content and Review
Certain content on the service may be made available by other users of the service; including ratings, opinions, photos, and reviews related to the Services, or initiation of support requests ("User Content").
As between you and Shaka Guide, you retain ownership of whatever content you upload to the service as a user. Nevertheless, you grant us a non-exclusive, transferable, perpetual, sub-licensable, royalty-free, non-revocable and worldwide license to host, copy, modify, reproduce, edit, publish, create derivative works from, publicly display, distribute and otherwise use the User Content to enable us to develop, make available, promote and improve the Shaka Guide platform and service.
Shaka Guide provides a review system that provides a means through which Users can share their opinions or experience about the Shaka Guide service publicly, and we may not monitor, influence, contribute to or censor these opinions. You acknowledge and agree that posted review and any other Information relates only to the service experienced and not to any individual person or group of people.
User Content Monitoring and Disclaimer
Although we are under no obligation to edit or control User Content that you or other users post or publish and will not be in any way responsible or liable for User Content, Shaka Guide may, however, screen and approve all user content before they are made available on the Service.
Also, at any time and without prior notice, we may screen, remove, edit, refuse to publish, or block any User Content that in our sole judgment considers that;
- the Content is unlawful in any way, including because it is defamatory or breaches laws about unlawful discrimination, racial vilification, privacy or contempt;
- violates the terms provided herein this Terms of Service;
- the content is false or misleading;
- publication of the Content will infringe intellectual property rights (including copyright) or a person's moral rights;
- the content is offensive, abusive or obscene;
- or is otherwise objectionable.
You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable.
You agree not to do any of the following:
- Post, upload, publish, submit or transmit any Content that: (i) 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; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity, or (vii) promotes illegal or harmful activities or substances;
- Use, display, mirror or frame the Services, or any individual element within the Services, Shaka Guide’s name, any Shaka Guide trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Shaka Guide’s express written consent;
- Access, tamper with, or use non-public areas of the Services, Shaka Guide’s computer systems, or the technical delivery systems of Shaka Guide’s providers;
- Attempt to probe, scan, or test the vulnerability of any Shaka Guide system or network or breach any security or authentication measures;
- void, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Shaka Guide or any of Shaka Guide’s providers or any other third party (including another user) to protect the Services;
- Attempt to access or search the Services or download Collective Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Shaka Guide or other generally available third party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other forms of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Shaka Guide trademark, logo URL or product name without Shaka Guide’s express written consent;
- Use the Services for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
We reserve the right but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Equipment and Internet Data
You are solely responsible to provide, maintain and manage the equipment necessary for the use or access to the Service, including, but not limited to your mobile devices, tablet devices, computers, earplugs, earphones, headphones, chargers, auxiliary jack, blue tooth devices, USB cords and any other hardware or software needed to use and access the Services.
In addition, you further agree that you are solely responsible for providing and managing the Internet connection and data, and all their related fees incurred as the result of your use or access to the Service. Although Shaka Guide’s Apps can be used offline, you hereby acknowledge that the Apps may access the Internet data on your device during your access or use to the Apps, or while the Apps are in the background state of your mobile device. You further acknowledge that if you do not wish to use any Internet connection or Internet data, you may turn off your mobile device’s access to the Internet or data by managing it under the setting provided on your device. For specific instructions on how to turn off your device’s Internet and data usage, please consult your device’s manufacturer. You assume all responsibility for all data fees during your use or related to your use or access to the Service.
Links to Third-Party Websites or Resources
The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content. Shaka Guide may provide tools through the Service that enable you to export information, including User Content, to third-party services, including through features that allow you to link your account on Shaka Guide with an account on the third-party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third-party services are not under our control, and we are not responsible for any third-party service’s use of your exported information.
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time by sending an email to us at firstname.lastname@example.org. Upon any termination, discontinuation or cancellation of Services or your Account, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.
The Services, Products and Content are provided “as is,” without warranty of any kind. Without limiting the foregoing, we explicitly disclaim any warranties of merchantability, fitness for a particular purpose, quiet enjoyment or non-infringement and any warranties arising out of course of dealing or usage of trade.
We make no warranty that the Services or Products will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
Any and all content provided by the Service is made available for informational and planning purposes only and is not intended to be relied upon in situations where precise location information is needed or where an erroneous, inaccurate, time-delayed or incomplete location or map data may lead to death, personal injury, property or environmental damage. You agree that the results you receive from the Service may vary from actual road or terrain conditions due to factors that can affect the accuracy of the map/tour data, such as, but not limited to, weather, road and traffic conditions, and geopolitical events.
Shaka Guide and its licensors reserve the right to change, suspend, remove, or disable access to the Service, or any feature or part thereof, at any time without notice or liability. Shaka Guide may also impose limits on the use of or access to the Service, or any feature or part thereof, in any case, and without notice or liability.
You will indemnify and hold harmless Shaka Guide and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Services or Content or (ii) your violation of these Terms.
Limitation of Liability
Neither Shaka Guide nor any other party involved in creating, producing, or delivering the Services, Products or Content will be liable for any incidental, special, exemplary or consequential damages, including, but not limited to, lost profits, loss of data or goodwill, service interruption, computer damage or system failure or the cost of substitute Services or Products arising out of or in connection with these terms or from the use of or inability to use the Services, Products or Content, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Shaka Guide has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you. In no event will Shaka Guide’ total liability arising out of or in connection with these terms or from the use of or inability to use the Services, Products or Content exceed the amounts you have paid to Shaka Guide for use of the Services, Products or Content or one hundred dollars ($100), if you have not had any payment obligations to Shaka Guide, as applicable. The exclusion and limitations of damages set forth above are fundamental elements of the basis of the bargain between Shaka Guide and you.
These Terms and any action related thereto will be governed by the laws of the State of Hawaii without regard to its conflict of laws provisions.
Agreement to Arbitrate
While we will make reasonable attempts to resolve any dispute that you may have with us amicably, a dispute will be subject to arbitration if these attempts fail.
You and Shaka Guide agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services, Products or Content (collectively, “Disputes”) that was not able to be solved amicably between the parties involved will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Shaka Guide with written notice of your desire to do so by email at email@example.com within thirty (30) days following the date you first agree to these Terms (such notice, an “Arbitration Opt-out Notice”). If you don’t provide Shaka Guide with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Shaka Guide with an Arbitration Opt-out Notice, will be the state and federal courts located in Honolulu, Hawaii and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Shaka Guide with an Arbitration Opt-out Notice, you acknowledge and agree that you and Shaka Guide are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.
Further, unless both you and Shaka Guide otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms
Arbitration Process, Arbitration Rules, and Location
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to us. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. Each party to the arbitration will bear the expense of that party's attorneys, witnesses and experts, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines. The arbitrator's award is final and binding on the parties unless we or you appeal it in writing to the arbitration firm within fifteen (15) days of notice of the award. The appeal must request a new arbitration before a panel of three neutral arbitrators designated by the American Arbitration Association. An award by a panel is final and binding on the parties after fifteen (15) days has passed. Any Claim you have must be commenced within six (6) months after the date the Claim arises. As noted above, you and Shaka Guide hereby voluntarily and knowingly waive any right either may have to a jury trial. You may choose to have the arbitration conducted by telephone, based on written submissions, or at another mutually agreed to location.
Class Action Waiver
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuses of intellectual property rights.
Entire Agreement: These Terms constitute the entire and exclusive understanding and agreement between Shaka Guide and you regarding the Services, Products and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Shaka Guide and you regarding the Services, Products and Content.
Severability: If any provision of these Terms is held invalid or unenforceable (either by an arbitrator appointed pursuant to the terms of the “Arbitration” section above or by a court of competent jurisdiction, but only if you timely opt-out of arbitration by sending us an Arbitration Opt-out Notice in accordance with the terms set forth above), that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
Assignment: You may not assign or transfer these Terms, by operation of law or otherwise, without Shaka Guide’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Shaka Guide may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Notices: Any notices or other communications provided by Shaka Guide under these Terms, including those regarding modifications to these Terms, will be given: (i) by Shaka Guide via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
No Waiver: Shaka Guide’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Shaka Guide. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or the Services or Products, please contact Shaka Guide at firstname.lastname@example.org.