Terms & Condition of Use.  Last Updated:  Sep 22, 2022

PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY AFFECT YOUR LEGAL RIGHTS. THESE TERMS CONTAIN AN ARBITRATION AGREEMENT THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES RATHER THAN JURY OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND. THE ARBITRATION AGREEMENT IS SET FORTH IN THE “GOVERNING LAWS IN CASE OF DISPUTE; ARBITRATION; JURISDICTION” SECTION BELOW.

BY ACCESSING OR USING OUR WEBSITE, MOBILE APPLICATIONS OR ONLINE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS OF USE AND ALL TERMS INCORPORATED BY REFERENCE.  DO NOT USE OUR WEBSITE, MOBILE APPLICATIONS OR ONLINE SERVICES IF YOU DO NOT AGREE TO ALL OF THESE TERMS.

These Terms and Conditions of Use (“Terms”) apply exclusively to your access to use of the website located at waikikimarkethawaii.com and all other sites, mobile sites, services, applications, platforms and tools where these Terms appear or are linked (collectively, the "Site") of Waikiki Market, and its subsidiaries and affiliates (collectively, “Waikiki Market” or “we”).  The Terms do not alter in any way the terms or conditions of any other agreement you may have with Waikiki Market for products or services.   

1.   Use of this Site.

1.1          By accessing or using our Site you agree to these Terms. If you do not agree to these Terms, you may not access or use this Site. Any person or entity who interacts with this Site through the use of crawlers, robots, browsers, data mining or extraction tools, or other functionality, whether such functionality is installed or placed by such person or entity or a third party, and whether permitted under these Terms, is considered to be using this Site. If at any time you do not accept all of these Terms, you must immediately stop using this Site. Certain areas within this Site may be governed by additional terms and policies ("Additional Terms"). By using those areas of this Site, you agree to the Additional Terms. The Additional Terms are incorporated into these Terms, and any reference to these Terms includes the Additional Terms.

1.2          Waikiki Market may at any time: (i) modify or discontinue any part of this Site; (ii) charge, modify or waive fees required to use this Site; or (iii) offer opportunities to some or all Site users. Waikiki Market reserves the right to make changes to these Terms at any time, and such changes will be effective immediately upon being posted on this Site. Each time you use this Site, you should review the current Terms. You can determine when these Terms were last revised by referring to the "LAST UPDATED" legend at the top of these Terms. Your continued use of this Site will indicate your acceptance of the current Terms; however, any change to these Terms after your last usage of this Site will not be applied retroactively.  

1.3          Waikiki Market reserves the right, without notice and at its sole discretion, to terminate your account or your use of this Site and to block or prevent future access to and use of this Site (i) if you violate any of these Terms, (ii) for any other reason or (iii) for no reason. Upon any such termination, your right to use this Site will immediately cease.  Waikiki Market reserves the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event we modify or cancel an order, we will attempt to notify you by contacting the email address provided at the time the order was made. Waikiki Market reserves the right to limit or prohibit orders that, in its sole judgment, appear to be placed by dealers, resellers or distributors.

1.4          If you have any questions regarding the use of this Site, please contact us by calling (808) 452-1500 (8am – 4pm daily, Hawaii Standard Time) or email us at [email protected].

2.            Privacy Policy.

Please refer to our Privacy Policy for information on how Waikiki Market collects, uses and shares information about users of this Site.  The Privacy Policy is incorporated into these Terms in its entirety. 

3.            Eligibility, Registration, and Accounts

3.1          This Site is not targeted towards, nor intended for use by, anyone under the age of 16. By using this Site, you represent and warrant that you are 16 years of age or older. If you are not at least 16 years of age, do not access, use or register for an account on this Site.   In addition, you may not make a purchase from this Site unless you are at least 18 years of age, and if you are under 18 years of age, you may use this Site only with the involvement with a parent or guardian.

3.2          By your use of this Site, you represent and warrant that you (a) have not previously been suspended or removed from this Site; (b) do not have more than one Site account; and (c) have full power and authority to agree to the Terms and in doing so will not violate any other agreement to which you are a party.

3.3          In order to use some features of this Site, you will need to register for an account and provide information about yourself, including your full name, address, phone number and email address and you must select a password. You agree to (a) provide accurate, current and complete information; (b) maintain and promptly update your account information; (c) maintain the security of your account credentials; (d) not share your account credentials with others; and (e) promptly notify Waikiki Market if you discover or otherwise suspect any security breaches related to this Site. If you use this Site, you are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password.  We reserve the right to suspend or terminate your account, refuse service to you or cancel orders, at any time, in our sole discretion, with or without notice to you. 

4.            Ownership, License and Restrictions on Use

4.1          Waikiki Market provides all information on this Site exclusively under these Terms and all applicable laws. Unless otherwise indicated, all right, title and interest (including all copyrights, trademarks and other intellectual property rights) all content on this Site, such as text, graphics, logos, images, audio clips, video, data, music, software, application updates, and other material (collectively, “Content”) is owned or licensed property of Waikiki Market, its licensors or suppliers, and is protected by copyright, trademark, patent or proprietary rights.  The collection, arrangement and assembly of all content on this Site is the exclusive property of Waikiki Market Super Market, Limited, and is protected by United States and international copyright laws.  In addition, the names, images, pictures, logos and icons identifying Waikiki Market's products and services are proprietary or licensed marks of Waikiki Market, its licensors, or suppliers. Except as expressly provided below, nothing contained herein shall be construed as conferring any license or right, by implication, estoppels or otherwise, under copyright, trademark or other intellectual property rights, and Waikiki Market, its licensors and suppliers expressly reserve all intellectual property rights in all Content on this Site.

4.2          You are hereby granted a personal non-exclusive, non-transferable, limited license to access and make personal use of this Site and the Content for NON-COMMERCIAL PURPOSES ONLY and subject to these terms.  You may download and/or print insignificant portions of materials retrieved from this Site provided (a) the materials are used only for personal, non-commercial purposes; (b) you do not modify or alter the Content in any away; (c) you do not alter delete, change or obscure any copyright, trademark or other notices; and (d) you do not violate these Terms in any way.  Except as expressly provided above, no part of this Site or any Content, including, but not limited to, materials retrieved therefrom or the underlying code, may be reproduced, republished, reverse-engineered, copied, uploaded, downloaded, displayed, modified, licensed, transmitted or distributed in any form or by any means for any commercial purpose, without the express written permission of Waikiki Market. Nothing herein transfers any right or license to the underlying code of any of this Site.

4.3          This Site may be used only for lawful purposes by individuals using authorized services of Waikiki Market, in accordance with these Terms.  As a condition to your use of this Site, you represent and covenant to Waikiki Market that you will not use this Site for any purpose that is unlawful or prohibited by these Terms.  You are responsible for your own communications, including the upload, transmission and posting of information, and are responsible for the consequences of their posting on or through this Site. Waikiki Market specifically prohibits any use of this Site, and requires all users to agree not to use this Site, for any of the following:

• Any commercial use, including collection or use of any product listings, descriptions, prices or images;
• Downloading, copying or transmitting any Content for the benefit of any other merchant;
• Using or attempting to use any engine, software, tool, agent, data or other device or mechanism (including browsers, spiders, robots, avatars or intelligent agents) to navigate or search this Site other than the search engine and search agents provided by Waikiki Market or generally publicly available browsers;
• Using framing or mirror techniques on any part of this Site without Waikiki Market’s express prior written consent;
• Using data extraction, scraping, mining or other data gathering tools, or creating a database by systematically downloading or storing Site content, or otherwise scraping, collecting, storing or using any Content, account information, product listings, descriptions, prices or images, except as otherwise expressly permitting by these Terms;
• Using any meta tags or any other hidden text utilizing Waikiki Market’s name or marks;
• Posting any information which is incomplete, false, inaccurate or not your own;
• Misrepresenting the identity of a user, impersonating another person, or using a buying agent to conduct transactions on this Site;
• Falsely stating or otherwise misrepresenting your affiliation with any person or entity in connection with this Site, or expressing or implying that we endorse any statement you make;  
• Constituting, engaging in or encouraging fraudulent activities or any other conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any city, state, national or international law or regulation or which fails to comply with accepted Internet protocols;
• Posting material that is copyrighted or otherwise owned by a third party unless you are the copyright owner or have the permission of the owner to post it;
• Posting material that reveals trade secrets, unless you own them or have the permission of the owner;
• Posting material that infringes on any other intellectual property, privacy or publicity right of another;
• Using this Site to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others, including others’ privacy rights or rights of publicity;
• Harvesting or collecting personally identifiable information about other users of this Site;
• Restricting or inhibiting any other person from using this Site (including, without limitation, by hacking or defacing any portion of this Site);
• Using this Site to advertise or offer to sell or buy any goods or services without Waikiki Market’s express prior written consent;
• Reproducing, duplicating, copying, selling, reselling or otherwise exploiting for any commercial purposes any portion of, use of, or access to this Site;
• Modifying, adapt, translate, reverse engineer, decompile or disassemble any portion of this Site;
• Removing any copyright, trademark or other proprietary rights notice from this Site or materials originating from this Site.
• Transmitting or transferring (by any means) information or software derived from this Site to foreign countries or certain foreign nations in violation of US export control laws;
• Tamper with this Site or use or attempt to use any device, software, routine or data that interferes or attempts to interfere with the working or functionality of this Site or any activity being conducted on this Site; or
• Attempting to interfere in any way with this Site’s or Waikiki Market’s networks or network security, or attempting to use this Site’s service to gain unauthorized access to any other computer system.

4.4          Violations of system or network security may result in civil or criminal liability. Waikiki Market will investigate occurrences and may involve, and cooperate with, law enforcement authorities in prosecuting the user or users who are involved in such violations. You are prohibited from violating or attempting to violate the security of this Site, including, without limitation, the following:

• Gaining access to data not intended for such user or logging into a server or account which the user is not authorized to access;
• Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization;
• Attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to this Site, overloading, “flooding”, “mailbombing” or “crashing”;
• Sending unsolicited email, including promotions and/or advertising of products or services, forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting.

5.            Mobile Application Users. 

5.1          With respect to each of Waikiki Market’s mobile applications (each an “App”), when you download the App or you create an account on the App, by selecting “I agree to the Terms and Conditions” you are expressly agreeing that you have read, understand and agree to be bound by these Terms and any amendments to these Terms. Check the “More” page periodically to see our most current Terms. Waikiki Market makes the App available so that users may access the services via a mobile device. To use the App, you must have a mobile device that is compatible with the mobile service. Waikiki Market does not warrant that the App will be compatible with your mobile device. Waikiki Market hereby grants to you a non-exclusive, non-transferable, revocable license to use an object code copy of the App for one registered account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile, reverse engineer or create derivative works of the App, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the App to any third party or use the App to provide time sharing or similar services for any third party; (iii) copy, reproduce, republish, upload, post, transmit or distribute the App in any way, unless specifically allowed in these Terms; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the App, features that prevent or restrict use or copying of any content accessible through the App, or features that enforce limitations on use of the App; or (v) delete the copyright and other proprietary rights notices on the App. You acknowledge that Waikiki Market from time to time may issue upgraded versions of the App and may automatically electronically upgrade the version of the App that you are using on your mobile device. You consent to such automatic upgrading on your mobile device and agree that the terms and conditions of these Terms will apply to all such upgrades. The foregoing license grant is not a sale of the App or any copy thereof, and Waikiki Market and its third-party licensors or suppliers retain all right, title, and interest in and to the App (and any copy of the App).

5.2          The use of the App requires use of a mobile device and wireless mobile data service, which must be obtained from your wireless carrier, and may require Internet access, which must be obtained from your service provider; you are responsible for obtaining and paying for such additional services and obtaining a suitable device, including without limitation all usage charges related thereto. You may be required to send and receive, at your cost, electronic communications related to the App, including without limitation, administrative messages, service announcements, diagnostic data reports, and App updates, from Waikiki Market, your mobile carrier or third-party service providers. If you do not have an unlimited wireless mobile data plan, you may incur additional charges from your wireless service provider in connection with your use of the App. You are solely responsible for obtaining any additional subscription or connectivity services or equipment necessary to access the App, including but not limited to payment of all third-party fees associated therewith, including fees for information sent to or through the App.

5.3          The App may not work with all devices or all mobile carriers. Waikiki Market makes no representations that the App will be compatible with or provided by all mobile carriers. In the event that fees are charged for the App, or other third -party service providers charge a fee for the products or services they provide, you agree to pay such fee to the respective party in exchange for your continued use of such products or services. Some services may be subject to different or additional terms (including fees), which you will be required to agree to prior to your use of such services.

5.4          Apple Users: With respect to any App that Waikiki Market provides to you designed for use on an Apple iOS-powered mobile device (an "iOS App"), these Terms incorporate by reference the terms and conditions of the “Standard” Licensed Application End User License Agreement (“LAEULA”) published by Apple, Inc. (www.apple.com/legal/ macapps/dev/stdeula). For purposes of these Terms, Waikiki Market’s iOS App is considered the “Licensed Application” and Waikiki Market is considered the “Application Provider” under the LAEULA.  To the extent that these Terms conflict with any of the terms and conditions of the LAEULA, these Terms shall control.

6.            User Content

6.1         Waikiki Market may, now or in the future, allow users to post or otherwise make available on the Site certain user content, including without limitation comments, pictures, sounds, and videos. Waikiki Market does not endorse or warrant, and is not responsible for the user content. Under no circumstances will Waikiki Market be liable for any loss or damage arising out of or in connection with any user content or information or materials obtained through user content, including without limitation personal injury, libel, slander, and emotional distress. Visitors to the Site are responsible for evaluating the accuracy, timeliness, and completeness of all content on the Site including user content. You shall not submit any user content that is illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable, or consists of or contains software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam." You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of the content. You are solely liable for any damages resulting from your failure to comply with the foregoing. By submitting user content, you automatically grant Waikiki Market a world-wide, royalty-free, perpetual, irrevocable, non-exclusive, fully sub-licensable and transferable, right and license to use, record, sell, lease, reproduce, distribute, create derivative works, from publicly displaying or perform, transmit, publish, and otherwise exploit the user content, in whole or part as Waikiki Market deems appropriate. Waikiki Market has the right, but not the obligation, to monitor user content. We reserve the right not to post any user content, but we do not have an obligation to post, maintain, screen or otherwise use any user content. We may discontinue the ability to submit user content in our sole judgment at any time without notice.

6.2         If you choose to make personally identifiable information available as part of user content, you do so at your own risk.  User content, including any personally identifiable information (including as name, address, telephone number, or email address), submitted is accessible to other users, including people you may not know.  Making this information available may result in receiving unsolicited emails or of other users sharing your information. You should use discretion when communicating with others or disclosing personal information. Waikiki Market has no control over and shall have no liability for any damages resulting from the use or misuse by any third party of information that you make public by submitting it as user content.

6.3          Waikiki Market has the right, but not the obligation, to monitor any activity and content associated with any forum or other interactive areas on the Site. Waikiki Market may access at any time and use internally for any lawful purpose information stored in its systems. Waikiki Market may disclose such information to any third-party including law enforcement agencies to protect its rights and property in response to legal process, or in a good faith belief that such disclosure is justified or required in an emergency situation. We may investigate any reported violation of our policies or complaints and take any appropriate action we deem appropriate, including without limitation, issue a warning, suspend or terminate your access and use of the Site, services and/or content at any time.

7.            Links to Third-Party Sites

Waikiki Market provides links to third party web sites for your convenience. Waikiki Market does not assume any responsibility for the (i) functionality, content of, (ii) technology implemented by, or (iii) privacy practices of third-party sites and all use is at your own risk. Before enabling any sharing functions of this Site to communicate with any such website or otherwise visiting any such website, you should review and understand the privacy policy, privacy settings, terms of use, and information-sharing functions for each third-party site and confirm they are acceptable prior to registration on or use of the third-party site. Links to third-party sites do not imply endorsement of the sites by Waikiki Market. In no event shall Waikiki Market be liable, directly or indirectly, to anyone for any loss or damage arising from or occasioned by the use of the linked sites or the information or material accessed through such sites including, without limitation, any incidental, special, or consequential damages of any kind whatsoever, attorneys' fees, loss of data, income, profits or savings.  Other sites may link to this Site with or without our authorization, and we may block any links to or from this Site. YOUR USE OF THIRD-PARTY WEBSITES AND RESOURCES IS AT YOUR OWN RISK.

8.            Limitation of Liability

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, A COVERED PARTY (AS DEFINED BELOW) SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND LOSS OF DATA, INCOME, PROFITS OR SAVINGS), WHETHER IN CONTRACT OR TORT, EVEN IF WAIKIKI MARKET HAS BEEN ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH (A) YOUR ACCESS OR USE OF, OR INABILITY TO ACCESS OR USE, THIS SITE; (B) ANY TRANSACTION CONDUCTED THROUGH OR FACILITATED BY THIS SITE; (C) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, DEFICIENCIES, OR OTHER INACCURACIES IN THIS SITE, (D) ANY UNAUTHORIZED ACCESS TO, OR USE, DISCLOSURE OF ALTERNATION OF, YOUR TRANSMISSIONS OF DATA INCLUDING WITHOUT LIMITATION, YOUR PERSONAL INFORMATION OR CARD HOLDER DATA, (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THIS SITE; OR (F) ANY OTHER MATTER RELATED TO THIS SITE, INCLUDING THEIR CONTENT, REGARDLESS OF ANY NEGLIGENCE OF ANY COVERED PARTY EVEN IF A COVERED PARTY OF ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  “COVERED PARTY” MEANS WAIKIKI MARKET, ITS AFFILIATES, AND ANY OFFICER, DIRECTOR, EMPLOYEE, SUBCONTRACTOR, AGENT, SUCCESSOR, OR ASSIGN OF ANY OF THEM.

Each provision of these terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks under your use of this Site between you and Waikiki Market.  This allocation is an essential element of the basis of the bargain between you and Waikiki Market.  The limitations in this section will apply even if any limited remedy fails of its essential purpose(s).

9              Disclaimers of Warranties

WAIKIKI MARKET CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THIS SITE OR ITS SERVER WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM UNAUTHORIZED ACCESS (INCLUDING THIRD-PARTY HACKERS OR DENIAL OF SERVICE ATTACKS), OR OTHERWISE MEET YOUR REQUIREMENTS.  WAIKIKI MARKET EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, WARRANTIES OF TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ANY WARRANT FOR INFORMATION, DATA, DATA PROCESSING SERVICES OR UNINTERRUPTED ACCESS, AND WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, USEFULNESS, OR CONTENT OF INFORMATION. WAIKIKI MARKET DOES NOT WARRANT OR REPRESENT THAT ANY MATERIAL ON THIS SITE IS ACCURATE, COMPLETE, CURRENT, RELIABLE, OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. WAIKIKI MARKET MAKES NO WARRANTY THAT THIS SITE WILL MEET USERS’ EXPECTATIONS OR REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, OR MATERIALS WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THIS SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.  WAIKIKI MARKET MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE, THE ACCURACY OR COMPLETENESS OF THIS SITE CONTENTS, OR THAT EMAILS SENT FROM WAIKIKI MARKET ARE FREE OF MALWARE OR OTHER HARMFUL COMPONENTS.  IF YOU ARE DISSATISFIED WITH THIS SITE, ANY CONTENT ON THIS SITE, OR THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THIS SITE. YOU ACKNOWLEDGE, BY YOUR USE OF THIS SITE, THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RISK.

Waikiki Market does not represent or warrant that any nutrition, ingredient, allergen or other product information on this Site is accurate or complete, because this information is provided by the product manufacturers or suppliers, and manufacturers may periodically modify their products and update their labels.  We recommend that you should not rely solely on the information contained on this Site and that you review the product’s label or contact [Waikiki Market’s customer service] or the manufacturer directly if you have a specific dietary concern or question about a product.

10.          Product & Service Availability and Description

10.1        This Site may contain references or cross-references to Waikiki Market branded and other branded products and services that are not available in every location.

10.2        All descriptions, images, references, features, content, specifications, products and prices of products and services described or depicted on this Site 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 on this Site 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) in regard to the receipt, possession, use, and sale of any item purchased from this Site. By placing an order, you represent that the products ordered will be used only in a lawful manner.  Waikiki Market 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 or all Transaction(s) (as defined below); and (iv) refuse to provide any user with any product or service. You agree to pay all charges that may be incurred by you or on your behalf through this Site, 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 Transactions.

10.3        Waikiki Market does not offer additional discounts on large orders of a single item or on large orders of many individual items. In addition, we reserve the right to limit quantities on orders placed by the same account, on orders placed by the same method of payment, and on orders that use the same billing or shipping address. We will notify you if such limits are applied. Waikiki Market reserves the right to prohibit purchases of any merchandise to resellers. Resellers are defined as a company or an individual that purchases goods with the intention of selling them rather than using them.

10.4        Waikiki Market strives to display as accurately as possible the colors of the products shown on this Site; however, Waikiki Market cannot and does not guarantee that your monitor’s display of any color will be accurate.

10.5        If an item is out of stock, Waikiki Market may, in its sole discretion and at no extra cost to you, substitute another item for the out-of-stock item if Waikiki Market, in its sole discretion, determines that the identical brand and product is available in a form that is of equal or greater value, for example, larger quantity, packaged with a trial sample, or with updated product packaging.

10.6       Waikiki Market’s acknowledgement of an order means that your order request has been received; it does not mean that your order has been accepted or shipped or that the price or availability of an item has been confirmed. Waikiki Market makes a conscientious effort to describe and display its products and services accurately on this Site. Despite these efforts, a small number of items on this Site may be mispriced, described inaccurately or unavailable, and we may experience delays in updating information on this Site and in our advertising on other sites. As a result, we cannot and do not guarantee the accuracy or completeness of any information, including prices, product images, specifications, availability and services. Waikiki Market reserves the right to change or update information and to correct errors, inaccuracies or omissions at any time without prior notice. We apologize for any inconvenience. If we determine that there were inaccuracies in our product information, we will cancel your order and notify you of such cancellation via email.

10.7        We will not be responsible for failure to fulfill any obligation due to causes beyond our control.

11.         Online Ordering, Curbside Pickup and Delivery

Please refer to our Online Ordering, Curbside Pickup and Delivery FAQs for information on ordering, pickup and delivery, which are incorporated into these Terms in their entirety. 

12.          Transaction Requirements. 

If you wish to purchase any product or service made available through this Site including items sold by Waikiki Market (each such purchase, a "Transaction"), you may be asked to supply certain information relevant to your Transaction including, without limitation, information about your method of payment (such as your payment card number and expiration date), your billing address, and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT CARD(S) OR OTHER PAYMENT METHOD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION. By submitting such information, you grant to Waikiki Market the right to provide such information to third parties for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.  For same-day delivery orders placed through this Site, Waikiki Market will temporarily authorize your payment card for your order amount plus an additional amount to allow for substitutions and special requests related to your same-day delivery order. You will only be charged for the items you receive. The final total will be shown in your account and provided via email after delivery of your order.

13.          HEALTH CARE PRODUCTS

ANY HEALTH CARE PRORDUCT INFORMATION CONTAINED IN THIS SITE IS INTENDED FOR EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED AS MEDICAL ADVICE FOR INDIVIDUAL CONDITIONS OR TREATMENT, IT IS NOT A SUBSTITUTE FOR A MEDICAL EXAM, AND IT DOES NOT REPLACE THE NEED FOR SERVICES PROVIDED BY MEDICAL PROFESSIONALS. TALK TO YOUR DOCTOR OR PHARMACIST BEFORE TAKING ANY MEDICATION (INCLUDING ANY HERBAL MEDICINES OR SUPPLEMENTS). ONLY YOUR DOCTOR OR PHARMACIST CAN PROVIDE YOU WITH ADVICE ON WHAT IS SAFE AND EFFECTIVE FOR YOU. THE INFORMATION CONTAINED ON THIS SITE CONCERNING HERBAL MEDICINE CONTAINS INFORMATION ABOUT HERBAL THERAPIES AND OTHER DIETARY SUPPLEMENTS, WHICH ARE NOT REGULATED IN THE UNITED STATES BY THE FOOD AND DRUG ADMINISTRATION. ADDITIONALLY, THE MANUFACTURE AND DISTRIBUTION OF HERBAL SUBSTANCES IS NOT REGULATED IN THE UNITED STATES, AND NO QUALITY STANDARDS CURRENTLY EXIST. BECAUSE OF THE UNREGULATED NATURE OF THE HERBAL AND SUPPLEMENT INDUSTRY, YOU NEED TO DISCUSS USE OF THESE SUBSTANCES WITH YOUR DOCTOR OR PHARMACIST.

14.          Return Policy

If you are not fully satisfied with your purchase of items sold by Waikiki Market, you may return it in accordance with Waikiki Market’s Online Ordering Return Policy, which is incorporated into these Terms in its entirety. 

15.          Telephone and Text Messages. 

15.1        Waikiki Market or our agents may call or text by telephone regarding your account or your Transactions. You agree that we may place such calls or texts using an automatic dialing/announcing device. You agree that we may make such calls or texts to a mobile telephone or other similar device. You agree that we may, for training purposes or to evaluate the quality of our service, listen to and record phone conversations you have with us.

15.2        Your carrier’s standard message rates will apply to your entry or submission message, Waikiki Market’s confirmation, and all subsequent text messages. Other charges may apply. All charges are billed by and payable to your mobile service provider.  Waikiki Market will not be liable for any delays in the receipt of any text messages. Delivery is subject to effective transmission from your network operator.

15.3        Data obtained from you in connection with this text messaging service may include your mobile phone number, your carrier’s name, and the date time and content of your messages and other information you provide to Waikiki Market as part of this service. Waikiki Market may use this information to contact you and provide services you request from Waikiki Market. Waikiki Market may also use this information as described in the subscription list you’ve enrolled in. Waikiki Market may use an automatic dialing system to deliver text messages to you.

15.4        The maximum number of text messages you may receive per month will vary based on the subscription list you have enrolled in. You can unsubscribe at any time by texting STOP to ________ and you will receive a text confirming that you have been unsubscribed for Waikiki Market’s text message list. If you have questions, reply “HELP” to _____________ or contact Waikiki Market at (808) 452-1500.

16.          Filtering. 

Pursuant To 47 U.S.C. Section 230(d) as amended, we hereby notify you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available on the following website:  OnGuard Online (http://onguardonline.gov/). Please note that we do not endorse any of the products or services listed at such website.

17.          Gift Cards. 

All gift cards, e-gift cards, and other gift certificates are deemed purchased in and issued from the State of Hawaii. The risk of loss and title to such items passes to the purchaser upon our electronic transmission to the recipient or delivery to the carrier, whichever is applicable.

18.          Maika`i Card. 

For the Terms and Conditions related to your Maika`i Card please see Maika`i Card Terms and Conditions, which are incorporated into these Terms in their entirety. 

19.          Website Accessibility. 

Waikiki Market is committed to providing accessibility and usability of its Site, waikikimarkethawaii.com for all people with disabilities. Currently, Waikiki Market is working toward implementing the applicable elements of the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 Level AA (WCAG 2.0 AA) as components of its Site accessibility standards or other standards to the extent required by the Americans with Disabilities Act.  Please be aware that our efforts are ongoing. If, at any time, you have specific questions or concerns about the accessibility of any particular Site page on waikikimarkethawaii.com, please  contact us or email [email protected]. If you do encounter an accessibility issue, please be sure to specify the Site page in your email, so that someone from our customer services team can further assist you.

20.          Export Policy. 

You agree that any purchased goods licensed or sold on this Site, which may include technology and software, and all software, including all HTML code and controls that are contained on this Site, are subject to the customs and export control laws and regulations of the United States of America and may also be subject to the customs and export laws and regulations of the country in which the products are manufactured and/or received. THE COPYING OR REPRODUCTION OF SUCH SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. By purchasing, downloading, or using technology or software from this Site, you agree to abide by applicable laws, rules, and regulations including, but not limited to, the Export Administration Act and the Arms Export Control Act, and you represent and warrant that you will not transfer, by electronic transmission or otherwise, the software or technology to a foreign national or a foreign destination in violation of the law.

21.          DMCA Notice – Notice & Procedure for Making Claims of Copyright Infringement. 

21.1        Waikiki Market’s policy is to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act ("DMCA"). Copyright-infringing materials found on this Site can be identified and removed via our process listed below, and you agree to comply with such process in the event you are involved in any claim of copyright infringement to which the DMCA may be applicable.

21.2        If you believe in good faith that your work has been copied in a way that constitutes copyright infringement, please provide Waikiki Market’s copyright agent the written information specified below. Please note that this procedure is exclusively for notifying Waikiki Market that your copyrighted material has been infringed. Waikiki Market does not and will not make any legal decisions about the validity of your claim of infringement or the possible defenses to a claim. When a clear and valid notice is received pursuant to the guidelines set forth below, Waikiki Market will respond by either taking down the allegedly infringing content or blocking access to it. Waikiki Market may contact the notice provider to request additional information. Under the DMCA, Waikiki Market is required to take reasonable steps to notify the user who posted the allegedly infringing content ("Alleged Infringer"). The Alleged Infringer is allowed under the law to send Waikiki Market a counter-notification. Notices and counter-notices are legal notices distinct from regular Site activities or communications. We may publish or share them with third parties in our sole discretion (in addition to producing them pursuant to a subpoena or other legal discovery request). Anyone making a false or fraudulent notice or counter-notice may be liable for damages under the DMCA, including costs and attorneys’ fees. Any person who is unsure of whether certain material infringes a copyright held by such person or a third party should contact an attorney.

21.3        To file a DMCA notice, the copyright owner must send in a written letter by fax, regular mail, or email only. We reserve the right to ignore a notice that is not in compliance with the DMCA, and we may, but are not obligated to, respond to a non-compliant notice.

21.4        A DMCA notice must:

• Identify specifically the copyrighted work(s) believed to have been infringed (for example, "My copyrighted work is the picture that appears at [list location where material is located].");
• Identify the Content that a copyright owner claims is infringing upon copyrighted work. The copyright owner must provide information reasonably sufficient to enable us to locate the item on this Site. The copyright owner should provide clear screenshots of the allegedly infringing materials for identification purposes only. The information provided should be as detailed as possible;
• Provide information sufficient to permit us to contact the copyright owner directly: name, street address, telephone number, and email (if available);
• If available, provide information sufficient to permit us to notify the Alleged Infringer (email address preferred);
• Include the following statement: "I have 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";
• Include the following statement: "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed";
• Be signed; and
• Be sent to our DMCA designated agent at the following address:

22.          Jurisdictional Issues. 

This Site is controlled and operated by Waikiki Market from the State of Hawaii, and is not intended to subject Waikiki Market to the laws or jurisdiction of any state, country or territory other than that of the State of Hawaii and applicable federal laws.  Waikiki Market does not represent or warrant that this Site or any part thereof is appropriate or available for use in any particular jurisdiction other than the State of Hawaii. In choosing to access this Site, you do so on your own initiative and at your own risk, and you are responsible for complying with all local laws, rules and regulations. We may limit this Site’s availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.

23.          Indemnification & Defense. 

As a condition of the use of this Site, you agree to defend, indemnify and hold harmless Waikiki Market and its respective employees, directors, officers, agents, vendors and suppliers from and against any liabilities, losses, investigations, inquiries, claims, suits, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) (each, a "Claim") arising out of or otherwise relating to Claims alleging facts that if true would constitute a breach by you of these Terms.

24.          Entire Agreement; Severability

These Terms, including any other documents referenced herein, constitute the entire agreement with respect to your access to and use of this Site. You also may be subject to additional Terms and Conditions that may apply to certain parts of this Site.  If any provision of these Terms and Conditions is unlawful, void or unenforceable, then that provision shall be deemed severable from the remaining provisions and shall not affect their validity and enforceability.  Notwithstanding the foregoing, under no circumstances do the parties agree to class-wide arbitration.  If a court refuses to enforce the waiver of class-wide arbitration, the entire Arbitration Agreement shall be unenforceable and any claims brought on behalf of a putative class will proceed in court.

25.          Notices and Communications

25.1       Except as explicitly stated otherwise, any notices you send to Waikiki Market shall be sent by mail to Waikiki Market Super Market, Limited, 3536 Harding Avenue, Honolulu, Hawaii 96816.  When you visit the Site or send an email to us, you are communicating with us electronically.  In the case of notices Waikiki Market sends to you, you consent to receive notices and other communications electronically by Waikiki Market posting notices on this Site, sending you an email at the email address listed in your profile in your account, or mailing a notice to you at your billing address listed in your profile in your account. You agree that all agreements, notices, disclosures and other communications that Waikiki Market provides to you in accordance with the prior sentence satisfy any legal requirement that such communications be in writing. Notice shall be deemed given (i) 24 hours after the notice is posted on this Site or an electronic message is sent, unless the sending party is notified that the message did not reach the recipient, or (ii) in the case of mailing, three days after the date of mailing. You agree that a printed version of these Terms and/or any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

25.2        Any communication or other information sent to Waikiki Market via electronic mail or otherwise in connection with your use of this Site, including but not limited to suggestions, ideas and comments, will be treated as non-confidential and all such information may be used by Waikiki Market for any purpose without compensation. Disclosure to Waikiki Market shall constitute an assignment of all right, title and interest in such information to Waikiki Market.

26.          Links to Waikiki Market Web Pages

26.1       Waikiki Market permits links to this Site provided (a) you do not remove or obscure, by framing or otherwise, any content, including, but not limited to, the copyright notice and other notices, (b) you do not directly or indirectly cause any portion of this Site to appear on a user's computer screen with any material (e.g., URL, text, graphics, pop-up window, audio or other) supplied by or associated with you or a third party, (c) you give Waikiki Market notice of all such links by sending an email to [email protected], and (d) you immediately discontinue providing links to this Site if notified by Waikiki Market.

26.2        When linking to this Site you may use one or more Waikiki Market logos as a link anchor. To ensure proper usage of Waikiki Market logos, we have presented them under our home page here. These logos are trademarks of Waikiki Market and Waikiki Market retains all rights in them. Waikiki Market grants you a limited license to use these logos solely for linking to Waikiki Market web pages as provided above. Logos cannot be altered or modified other than to make them larger or smaller. You may not use, frame or utilize framing techniques to enclose any Waikiki Market trademark, logo, or other proprietary materials, including the images posted on the Site, the content of any text or the design of any page, or form contained on a page without Waikiki Market’s express written consent.  Except for the limited license provided above, Waikiki Market does not grant, by implication, estoppels or otherwise, any license to use any trademark, copyrighted materials or other proprietary materials displayed on this Site and any other use is strictly prohibited.

26.3        Waikiki Market makes no claim or representation regarding, and accepts no responsibility or liability for, the quality, content, nature, or reliability of websites accessible by hyperlink from the Site, or other websites linking to the Site Website. Furthermore, these links do not imply endorsement by or affiliation with any third party or any third party website, products or services provided by any third party.

27.          Arbitration Agreement

Please read this section carefully. Except as the Terms otherwise provide, you waive your rights to try any claim in court before a judge or jury and to bring or participate in any class, collective, or other representative action.

27.1           Agreement to Binding Arbitration

You and Waikiki Market agree that in the event of any claim, dispute, or controversy (whether in contract, tort, statute, or otherwise) arising out of, relating to, or connected in any way with (1) this Site or (2) the breach, enforcement, interpretation, application, or validity of these Terms, such claim, dispute or controversy will be resolved exclusively by final and binding arbitration, except as otherwise set forth in these Terms (the “Arbitration Agreement”).

27.2        Exceptions to Arbitration

Notwithstanding the foregoing, in lieu of arbitration: (1) either you or Waikiki Market can bring an individual claim in small claims court in the United States of America consistent with any applicable jurisdictional and monetary limits that may apply, provided that it is brought and maintained as an individual claim; and (2) you agree that you or Waikiki Market may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

27.3        Jury Trial & Class Action Waiver

Except as the Terms otherwise provide, you and Waikiki Market acknowledge and agree that you are each waiving the right to a trial by jury. The parties further agree that any arbitration shall be conducted in their individual capacities and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. You and Waikiki Market may not be plaintiffs or class members in any purported class, collective, or representative proceeding, and may each bring claims against the other only in your or its individual capacity. You acknowledge and agree that with regard to any claims relating in any way to this Site, you may not seek to, and an arbitrator or court may not, join or consolidate your claims with any other similar claims and you agree you will not proceed in any court or arbitration proceedings as a representative of others, join in any court or arbitration proceedings brought by any other person, and understand that you may not be included as a member of any class that may be certified by a court or arbitrator. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the individual claim. 

If any court or arbitrator determines that any term in the immediately preceding paragraph is unenforceable for any reason as to any claim, then the Arbitration Agreement will be inapplicable to that claim, and that claim will instead proceed through litigation in court rather than by arbitration, but only after the conclusion of the arbitration of any claim or dispute that is subject to the Arbitration Agreement.

27.4           Governing Law & Arbitration Rules

The laws of the State of Hawaii will govern the interpretation and enforcement of these Terms and any dispute subject to this section.

The arbitration will be conducted under the then current and applicable rules of the American Arbitration Association (“AAA”). The AAA rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879.

27.5        Initiating Arbitration

If you intend to seek arbitration you must notify Waikiki Market by calling (808) 452-1500 and asking for the customer service department and allowing Waikiki Market the opportunity to resolve the claims or disputes. If your claims or disputes are not resolved within sixty (60) days either party may initiate arbitration proceedings.

A form to initiate arbitration proceedings is available on the AAA site at www.adr.org. In addition to filing this form with the AAA, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send such copy to Waikiki Market at 3536 Harding Avenue, Honolulu, Hawaii 96816, and Waikiki Market will send such copy to the current billing address on your account or to your attorney, if you have retained one.

27.6        Fees

For claims of $100,000 (US Dollars) or less, Waikiki Market will pay all filing, administration, and arbitrator fees (collectively, “Filing Fees”) unless the arbitrator determines that your claim is frivolous. For claims over $100,000 (US Dollars), you will be responsible for the Filing Fees.

27.7        Location & Procedure

If your claim is for $10,000 (US Dollars) or less, you may choose to have arbitration conducted solely on the basis of documents submitted to the arbitrator, via a telephone hearing, by an in-person hearing in the City and County of Honolulu, State of Hawaii, or as otherwise mutually agreed to by the parties. If your claim exceeds $10,000 (US Dollars), the location of the arbitration will be in the City and County of Honolulu, State of Hawaii.  The parties’ right to a hearing will be determined in accordance with the rules of the AAA.

27.8           Arbitrator’s Decision

The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You acknowledge and agree that each party shall pay the fees and costs of its own attorneys, experts, and witnesses incurred in connection with any arbitration or court proceeding between the parties notwithstanding any provision permitting the award attorneys’ fees to the prevailing party in any statute under which you may bring a claim.

28.          Choice of Law, Forum Selection & Jury Waiver. 

Except as set forth in the Arbitration Agreement section above, all matters relating to your access to or use of this Site and all matters arising out of or related to these Terms, will be governed by the applicable laws of the United States of America and the laws of the State of Hawaii, without regard to Hawaii’s choice of law principles. Unless you and Waikiki Market agree otherwise, in the event that it is determined or these Terms provide that a claim should not proceed through arbitration, you agree that any claim or dispute (with the exception of a claim or dispute appropriately lodged in any small claims court in the United States of America) shall be resolved in the United States District Court for the District of Hawaii, and you submit to the personal jurisdiction of that court. If subject matter jurisdiction (including diversity jurisdiction) does not exist in the United States District Court for the District of Hawaii for any such claim, then the exclusive forum and venue for any such action shall be the courts of the State of Hawaii located in the City and County of Honolulu, and you submit to the personal jurisdiction of that court. As to any proceeding in court, you and Waikiki Market both waive your right to a jury trial, unless such waiver is unenforceable.

29.          General Information

29.1        You agree that no joint venture, partnership, employment, or agency relationship exists between Waikiki Market and you as a result of these Terms or your use of this Site.

29.2       Any claim or cause of action you may have with respect to Waikiki Market or this Site must be commenced within one (1) year after the claim or cause of action arose. All claims must be resolved using the procedures set forth in Section 25 above.

29.3       The failure of Waikiki Market to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.

29.4       You may not assign any of your rights or obligations under these Terms without Waikiki Market’s express written consent.

29.5       These Terms inure to the benefit of Waikiki Market’s successors, assigns and licensees. The section titles in the Terms are for convenience only and have no legal or contractual effect.