TERMS OF USE

Last Updated: May 25, 2018

 

The following terms and conditions (the “Terms of Use”) constitute a binding agreement between you and Makai HR (“Makai HR,” “we,” or “us”) with respect to your use of the Makai HR Employee Portal at https://mak-ep.prismhr.com (the “Site”), and the services available on the Site (collectively, the “Services”), including any Content (as defined in Section 2 below). By accessing or using the SITE in any manner, you (A) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO THESE TERMS OF USE AND OUR PRIVACY POLICY[A1] [VW2] , WHICH IS INCORPORATED HEREIN BY REFERENCE, and (B) affirm that you are at least 18 years of age (or have reached the age of majority in the jurisdiction where you reside) IF YOU DO NOT AGREE TO THESE TERMS OF USE OR OUR PRIVACY POLICY, DO NOT USE THE SITE.

 

THESE TERMS OF USE INCLUDE AN AGREEMENT TO MANDATORY ARBITRATION, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO THE SITE OR THE SERVICES, THESE TERMS OF USE AND/OR OUR PRIVACY POLICY TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT. THE DISPUTE RESOLUTION PROVISION ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION. MORE INFORMATION ABOUT THE ARBITRATION AND CLASS ACTION WAIVER CAN BE FOUND IN SECTION 12  (ARBITRATION AGREEMENT) BELOW.

 

THESE TERMS OF USE ALSO INCLUDE A JURY TRIAL WAIVER.

1. Changes to Terms of Use.  Other than the agreement to arbitrate and prohibition against class actions as described in Section 12 herein, we may revise and update these Terms of Use from time to time in our sole discretion. The date these Terms of Use were last updated is set forth at the top of this page. Your continued use of the Site following the posting of revised Terms of Use means that you accept and agree to the changes. 

 

2. Scope of and Restrictions on Use. Subject to these Terms of Use, Makai HR grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to  access and use the Site and Services for your personal, non-commercial use, including any documents, graphics, text, instructions, images, audio files and/or other sounds, videos, and other materials you may view on, access through, or are otherwise related to the Site or the Services (collectively, the “Content”).  Except as otherwise provided in these Terms of Use, the Content may not be copied, downloaded, or stored in a retrieval system for any other purpose, nor may it be redistributed, reused, or modified for any purpose, without the express written permission of Makai HR. You agree not to:

  • collect information from the Site using an automated software tool or manually on a mass basis;

  • use automated means to access the Site, or gain unauthorized access to the Site or to any account or computer system connected to the Site;

  • obtain, or attempt to obtain, access to areas of the Site or our systems that are not intended for access by you;

  • “flood” the Site with requests or otherwise overburden, disrupt, or harm the Site or our systems;

  • restrict or inhibit other users from accessing or using the Site or the Services;

  • modify or delete any copyright, trademark, or other proprietary rights notices that appear on the Site or in the Content; or

  • access or use the Site, Services or Content for any unlawful purpose or otherwise beyond the scope of the rights granted herein.

 

3. Ownership. The Site and Services (including the Content) are owned by Makai HR and, as applicable, its licensors and are protected under copyright, trademark, and other applicable United States and international laws and treaties. Without limiting the foregoing, the trademarks, service marks, and logos displayed on the Site are registered and unregistered marks of Makai HR and, as applicable, its licensors. You acknowledge and agree that, as between you and Makai HR, Makai HR is and shall remain the sole owner of the Site, Services and the Content, including, without limitation, all patents, copyrights, trademarks, trade secrets, and other intellectual property and proprietary rights therein and thereto. 

 

4. Account Registration and Security. Access to and use of certain Services may require you to register for an account. You agree to provide true, accurate, current, and complete information about yourself as prompted by the applicable registration or log-in form, and you are responsible for keeping such information up to date. You are responsible and liable for all activities conducted through your account, regardless of who conducts those activities. You may not share your account with anyone or allow anyone else to access or use your account. You are responsible for maintaining the confidentiality of your account information, including your username and password. You agree to immediately notify Makai HR of any unauthorized use of your account, or any other breach of security. We are not liable for any loss or damage arising from your failure to protect your username or password.

 

5. User Content.

5.1 User Content and Restrictions. The Services may enable users to upload, display, or transmit (hereinafter, “post”) information, documents, materials, and other user-generated content (collectively, “User Content”). You represent and warranty that all User Content posted by you shall be accurate and complete.  You may not post any User Content that:

  • is unlawful, abusive, malicious, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy rights or right of publicity, or otherwise objectionable;

  • constitutes or promotes sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;

  • contains any material that could give rise to any civil or criminal liability under any applicable laws, rules, or regulations or that otherwise may be in conflict with these Terms of Use;

  • infringes upon, misappropriates, or otherwise violates any intellectual property rights or other rights of a third party;

  • encourages criminal conduct;

  • contains false, misleading, fraudulent, or deceptive claims or content;

  • gives the impression that it emanates from or is endorsed by Makai HR or any other person or entity, if this is not the case; or

  • contains any virus, malware, spyware, or other harmful content or code.

 

5. 2 Rights You Grant to Us. You hereby grant to Makai HR an irrevocable, perpetual, non-exclusive royalty-free, worldwide right and license, during the term of your co-employment by Makai HR and, thereafter, during Makai HR’s applicable record retention period[A3] [VW4] , to access, use, reproduce, display, perform, distribute, and prepare derivative works of any User Content you post on or through the Services in all forms and all media, whether now known or that become known in the future, for any purposes related to your co-employment by Makai HR[A5] [VW6] . If you post User Content, you represent and warrant to Makai HR that you own or control all rights in and to such User Content and have the right to grant the rights above to us.

5.3 No Responsibility. You agree that you are solely responsible for your User Content.

 

5.4 Feedback/Surveys. Except with respect to your personal information as expressly provided for in our Privacy Policy[A7] , all comments, suggestions, ideas, concepts, or other information or materials disclosed or offered to us by you via the Services or in response to any survey solicitations from us shall be deemed to be non-confidential and non-proprietary.

 

6. Electronic Communications. The communications between you and Makai HR via the Services use electronic means. For contractual purposes, you consent to receive communications from us in electronic form, and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

 

7. Privacy Policy. You acknowledge and agree that all information collected by Makai HR is subject to our Privacy Policy[A8] . By using the Site, you consent to all actions we take with respect to your information in compliance with our Privacy Policy.

8. Change and Suspension.

8.1 Changes. Makai HR reserves the right to make changes to, suspend, or discontinue (temporarily or permanently) the Site and Services or any portion thereof (including any Content) at any time. You agree that Makai HR will not be liable to you or to any third party for any such change, suspension, or discontinuance.

8.2 Suspension/Termination of Access. Makai HR has the right to deny access to, and to suspend or terminate your access to, the Site and Services or to any features or portions thereof, at any time and for any reason, including if you violate these Terms of Use. 

 

9. Disclaimer; Limitation of Liability.

9.1 Disclaimer of Warranties. THE SITE, SERVICES AND CONTENT ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, AND MAKAI HR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER MAKAI HR NOR ANY PERSON ASSOCIATED WITH MAKAI HR MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SITE, SERVICES OR ANY CONTENT. WITHOUT LIMITING THE FOREGOING, NEITHER MAKAI HR NOR ANYONE ASSOCIATED WITH MAKAI HR REPRESENTS OR WARRANTS THAT THE SITE, SERVICES OR CONTENT WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE, SERVICES, CONTENT, OR THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE, SERVICES OR CONTENT WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

 

9.2 Limitation of Liability. to the fullest extent permitted by law, IN NO EVENT WILL MAKAI HR OR its OFFICERS, directors, employees, agents, licensors, OR service providers BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SITE, SERVICES OR CONTENT, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, OR LOSS OF DATA, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. IN NO EVENT WILL MAKAI HR’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN CONNECTION WITH THE SITE, SERVICES OR CONTENT EXCEED U.S. $100.00. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF YOUR REMEDIES UNDER THESE TERMS OF USE FAIL OF THEIR ESSENTIAL PURPOSE. USE OF THE SITE, SERVICES AND CONTENT IS AT YOUR SOLE RISK.

 

9.3 Exclusions. Some jurisdictions do not allow the exclusion or limitation of certain warranties or consequential damages, so some of the exclusions and/or limitations in this Section 9 may not apply to you.

 

10. Indemnification. You agree to indemnify, defend, and hold Makai HR and its officers, directors, employees, agents, licensors, and service providers harmless from and against any claims, liabilities, losses, damages, judgments, awards, costs, and expenses (including reasonable attorneys’ fees) arising out of or resulting from your use of the Site, Services  and/or any Content, or any violation of these Terms of Use or applicable law. We reserve the right, at our own expense, to assume the exclusive defense and control of any action subject to indemnification by you, and in such event you agree to cooperate with us in defending such action. Your indemnification, defense, and hold harmless obligations will survive the termination of your use of the Site and Services and/or these Terms of Use.

11. Third Party Materials. The Services may display, include, or make available third-party content (including data, information, and other materials) or provide links to third-party websites or services (collectively, “Third Party Materials”). You acknowledge and agree that Makai HR is not responsible for any Third Party Materials, including their accuracy, completeness, timeliness, validity, legality, decency, quality, or any other aspect thereof. Makai HR does not assume and will not have any liability to you or any other person or entity for any Third Party Materials.  Third Party Materials and links thereto are provided solely as a convenience to you, and you access and use them at entirely at your own risk and subject to such third parties’ terms and conditions.

 

12. ARBITRATION AGREEMENT.  PLEASE READ THIS SECTION CAREFULLY.  IT AFFECTS YOUR RIGHTS AND IMPACTS THE WAY THAT YOU AND WE BRING CLAIMS AGAINST EACH OTHER AND HOW THOSE CLAIMS ARE DECIDED.

12.1 Dispute Resolution.  Although Makai HR hopes that  disputes with its employees will not occur, Makai HR believes that when these disputes do arise, it is in the mutual interest of all concerned to handle them promptly and with a minimum of disturbance to the operations of Makai HR’s business and the lives of its employees.  Accordingly, you and Makai HR, agree and mutually commit to submit all disputes that may arise out of or relating to your co-employment by Makai HR to binding arbitration before a single arbitrator in Honolulu, Hawaii, pursuant to the Federal Arbitration Act and the Hawaii Revised Uniform Arbitration Act.  The arbitrator, and not a court, shall decide all matters relating to the dispute, including but not limited to all issues, contract defenses, and questions of law or fact relating to the validity or enforceability of this mutual agreement to arbitrate, whether or not a proper demand for arbitration has been made, whether or not any condition precedent to arbitration has occurred, and whether or not any dispute is covered by this agreement to arbitrate.  Acceptance of this agreement to arbitrate is a condition of hire or a condition of continued employment with Makai HR, as applicable.

 

12.2 Prohibition of Class Actions and Non-Individualized Relief.  ANY ARBITRATION WILL BE CONDUCTED BY MAKAI HR AND YOU IN OUR RESPECTIVE INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). If this specific provision is found to be unenforceable, then all of Section 12, other than subsection 12.6, will be null and void and neither of us will be entitled to arbitrate our dispute.

 

12.3 Arbitration Rules.   The arbitrator will be selected and the arbitration administered pursuant to the applicable rules and procedures of Dispute Prevention and Resolution (DPR). 

 

12.4 Costs of Arbitration.   All costs of arbitration required to be paid in advance must be split evenly; provided, however, that Makai HR shall have the option to advance any portion of your share of such costs that exceed comparable costs of filing a lawsuit in a court of law if and to the extent you would otherwise suffer financial hardship or unfairness and subject to the arbitrator’s authority to reallocate all costs in his or her award. 

12.5 JURY TRIAL AND CLASS ACTION WAIVER. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, YOU AND MAKAI HR EACH UNCONDITIONALLY WAIVE ANY RIGHT TO A JURY TRIAL.  THIS MEANS THAT ANY CLAIM WOULD BE DECIDED BY A JUDGE, NOT A JURY.  FURTHER, WITH RESPECT TO ANY CLAIM THAT PROCEEDS IN A COURT, YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING.

 

13. Miscellaneous.

13.1 Governing Law. These Terms of Use and any dispute or claim arising out of or related to these Terms of Use, their subject matter, or their formation (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Hawaii, other than such laws and case law that would result in the application of the laws of a jurisdiction other than the State of Hawaii. 

 

13.2 Waiver and Severability. Our failure to exercise or enforce any right or provision of these Terms of Use will not constitute a waiver of such right or provision.  If any provision of these Terms of Use is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent possible, and the remaining provisions of these Terms of Use will continue in full force and effect.

 

13.3 Entire Agreement. These Terms of Use, including our Privacy Policy[A9] , constitute the sole and entire agreement between you and Makai HR with respect to the subject matter hereof, and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.

 

14. Questions. If you have any questions about the Site, Services or these Terms of Use, please call us at (808) 451-0000, email us at support@makaihr.com, or write to us at 820 W Hind Drive, Suite 1293; Honolulu HI 96821 .

Contact

677 Ala Moana Blvd Suite 815

Honolulu, HI 96813

tel: 808.451.0000

email: ​contact@makaihr.com

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