Kupa'a Key-Z Program Rules
Membership Agreement and Terms & Conditions of Use
Time Warner Entertainment Company, L.P., d/b/a Oceanic Time Warner Cable, and/or its affiliates (collectively, "Oceanic" "we," "us" or "our") operates a customer loyalty rewards program known as the "Kupa'a Key-Z Rewards Program" (the "Program"). The Program enables eligible subscribers of Oceanic services and their household members who properly register for the Program (each, a "Member," "you" or "your") to receive certain customer loyalty incentives/rewards when such Members purchase goods and services at Participating Merchants (as defined in Section 3.1, below), subject to the terms and conditions herein. This Membership Agreement and Terms & Conditions of Use (the "Agreement") sets forth the terms and conditions governing your membership and participation in the Program. BY REGISTERING TO BECOME A MEMBER OF AND/OR OTHERWISE ACCESSING, USING OR PARTICIPATING IN THE PROGRAM, WHETHER ONLINE, BY PHONE, FACSIMILE, MAIL OR OTHERWISE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE to, AND SHALL BE DEEMED TO HAVE AGREED TO AND ACCEPTED, without limitation or qualification, all the terms and conditions of this Agreement AND ANY OTHER TERMS AND CONDITIONS PRESENTED IN CONNECTION WITH THE PROGRAM.
1. Modifications; Other Programs
1.1 Modifications. Oceanic reserves the right to change the Program rules, regulations, awards, award levels, special offers and/or any other term or condition that governs your membership and participation in the Program at any time and without specific notice to you. Without limiting the foregoing, Oceanic reserves the right, at any time, to add, delete, alter or change any Program feature, benefit or redemption level (e.g., modifying the level of purchases required to qualify for Points (as defined in Section 4.1, below) or Reward Certificates (as defined in Section 5.1, below), establishing a maximum amount of Reward Certificates that Members may receive, changing the amount of Points that must be accumulated before a Reward Certificate may be redeemed, changing the types of purchases/transactions that constitute a qualified purchase, changing the amount of Points accrued on certain types of purchases, imposing additional restrictions, or terminating the Program), in Oceanic's sole discretion. Any modifications to this Agreement shall be effective immediately upon posting or other general notice thereof, which may be given by any means including, but not limited to, by electronic or conventional mail or by web site posting at www.oceanic.com. Any use of or participation in the Program by you after such notice shall be deemed to constitute acceptance by you of all such modifications.
1.2 Other Programs. Oceanic may administer, operate or offer rewards or customer loyalty programs other than the Program ("Other Rewards Programs"), for or together with other companies. This Agreement does not govern such Other Rewards Programs.
1.3 Subscriber Agreement. Notwithstanding anything herein to the contrary, Oceanic's provision of, and your use of, Oceanic high speed data, video (including analog, digital, and digital HD) and/or digital phone services ("Oceanic Services") shall be subject to and governed by the terms and conditions of your subscriber agreement with Oceanic ("Subscriber Agreement") in all respects and any other applicable rules governing your use of Oceanic Services. This Agreement does not govern the provision or use of Oceanic Services and shall not otherwise affect or alter any terms or conditions of your Subscriber Agreement.
2. Eligibility; Key-Z Cards and Accounts
2.1 Eligibility. Notwithstanding anything contained in this Agreement to the contrary, you will not be eligible for any benefit or right with respect to the Program unless and until you become a properly registered Member of the Program. Membership in the Program is available to any residential Oceanic service subscriber who (a) is over the age of eighteen (18) years, (b) maintains an active Oceanic customer billing account (the "Oceanic Account") in good standing (i.e., the subscriber's unpaid Oceanic Account balance does not exceed two dollars ($2.00) for any consecutive two (2) month period), and (c) has agreed to the terms and conditions of this Agreement and properly registered and enrolled in the Program by mail, telephone, Internet or e-mail, as directed by Oceanic from time to time. You hereby represent and warrant that you will provide, at all times, true, accurate and complete information to Oceanic in connection with the Program, including, without limitation, your legal name, tax identification information, address and other requested contact information.
2.2 Key-Z Cards; Key-Z Accounts. Each registered Member shall be issued a Kupa'a Key-Z card (each, a "Key-Z Card") and corresponding account (each, a "Key-Z Account") on a one-time, free-of-charge basis. Each Member household may be issued up to a maximum of three (3) Key-Z Cards at no additional charge. Additional Key-Z cards may be obtained for eligible household Members for a nominal fee of $5.00 per additional card.
Only one (1) Key-Z Account is permitted per person. In the event more than one (1) Key-Z Card Account number is assigned to the same individual, the duplicate account will be canceled upon written notification from the Member or at Oceanic's discretion. Each Key-Z Card is personal to the Member; provided however, that, subject to all terms and conditions of this Agreement, your eligible household Members (excluding, children under the age of 18) may transfer Points to or from other eligible household Members. Key-Z Accounts will be maintained in the name of the individual Member.
2.3 Issuance of Key-Z Cards; Lost or Additional Cards; Surrender. Oceanic and/or its designee will issue, and eligible Members may obtain, the applicable Key-Z Cards through the mail upon properly registering.In the event a Key-Z Card is lost or stolen, the accrued amount of Points in the Key-Z Account will be transferred to the new account. Members may purchase replacement Key-Z Cards from Oceanic and/or its designee at a price of five dollars ($5.00) per Key-Z Card, which amount must be paid prior to issuance of the Key-Z Card. Replacement and/or additional Key-Z Cards purchased by Members shall be mailed to his/her registered membership mailing address. All Key-Z Cards are and shall remain the property of Oceanic and/or its designee and must be surrendered upon request.
3. Participating Merchants; Administrative Services
3.1 Participating Merchants. Certain retail merchants have entered into agreements pursuant to which such merchants have agreed to participate in the Program ("Participating Merchants"). A current list of Participating Merchants is available at www.oceanic.com. Participating Merchants may be added to or withdrawn from the Program from time to time without specific notice to you. If a particular retail merchant is not identified as a Participating Merchant at www.oceanic.com on the date you attempt to make a qualifying purchase/transaction and/or redeem any Points, such retail merchant is not currently participating in the Program and shall not be deemed a Participating Merchant for purposes of this Agreement.
3.2 Administrative Services. Administrative services for the Program are provided on behalf of Oceanic by Pacific Wave Marketing, LLC ("Pacific Wave"), an independent third party service provider, which assumes all liability and responsibility for the provision of, or failure to provide, its respective services. Neither Oceanic or Pacific Wave nor their parents, subsidiaries, affiliates, directors, officers, employees, contractors, agents, representatives, successors or assigns (collectively, the "Related Parties") shall be liable for any bodily harm and/or property loss or damage which may result from your participation in the Program.
4. Points
4.1 Earning Points. Subject to the terms and conditions of this Agreement, upon becoming a registered Member of the Program, you will be eligible to receive certain customer loyalty program points credited to your Key-Z Account. The Member's Key-Z Card must be presented at the time of any qualifying purchase/transaction with a Participating Merchant. Points (as defined below) will be posted to the Key-Z Account corresponding to the Key-Z Card that is used in connection with the qualifying purchase/transaction. Subject to the terms and conditions of this Agreement, a Member will earn customer loyalty points for qualified net purchases of (a) certain Oceanic products/services ("Oceanic Points"), and/or (b) certain goods and/or services from a Participating Merchant ("Participating Merchant Points"), excluding any applicable taxes, shipping, handling, insurance, returns, refunds, or other purchase credits or similar fees or charges. Oceanic Points and Participating Merchant Points are collectively referred to herein as "Points." Notwithstanding anything herein to the contrary, Oceanic Points will be awarded to the Key-Z Account for the named Oceanic Account holder for each Member household. All Points shall be based on United States Dollars.
4.2 Qualifying Purchases/Amount of Points Awarded. Information and terms relating to qualifying purchases/transactions, as well as the number of Points awarded by Oceanic and Participating Merchants for such qualifying purchases/transactions, may be found at www.oceanic.com by clicking on the particular "Village Partner Offers/Rewards" button/icon ("Offer/Rewards Information Page"), which directs you to Oceanic's and/or the Participating Merchant's information page, as applicable. For Oceanic and each Participating Merchant, you must check the applicable Offer/Rewards Information Page to determine whether, and to what extent, purchases/transactions made with such party will be eligible for Points earnings. Points earnings are contingent upon you satisfying all of the terms and conditions of this Agreement and all of the terms, conditions, limitations and qualifications listed on the applicable Offer/Rewards Information Page and/or other rules and restrictions on purchase designated at the point of sale. Notwithstanding anything contained in this Agreement to the contrary, Points will not be given, awarded and/or earned for: (a) transactions with retail merchants which are not Participating Merchants on the date you purchase goods and/or services from such retail merchant (regardless of whether such retail merchant was a Participating Merchant at the time you became a Member), or (b) transactions with Oceanic or Participating Merchants to the extent that the applicable Offer/Rewards Information Page and/or such Participating Merchant or Oceanic indicates that no Points are being offered or given for the purchase/transaction in question (including where no offer appears with respect to the particular purchase/transaction on the applicable Offers/Rewards Information Page). Further, to the extent that the applicable Offers/Rewards Information Page and/or a Participating Merchant or Oceanic indicate that Points for any particular purchase/transaction are limited or restricted or that there are conditions or qualifications that must be satisfied in order to earn Points, such limits, restrictions, conditions and/or qualifications shall apply. Prior to transacting with a Participating Merchant, you should check the applicable Offer/Rewards Information Page to determine whether your transaction will be eligible for Points. Oceanic shall not be responsible for or liable to any Member for any terms and conditions imposed on Points awards and/or earnings by any Participating Merchant.
4.3 Vesting of Points. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, POINTS SHALL BE DEEMED VESTED ONLY UPON REDEMPTION OF A REWARD CERTIFICATE (AS DEFINED IN SECTION 5.1).
4.4 No Retroactive Accrual. Except as expressly provided below with respect to Oceanic Points, you will not accrue Points for any purchases made at Participating Merchants prior to your effective date of registration in the Program and no retroactive Points will be awarded. The foregoing notwithstanding, Members are eligible to retroactively accrue Oceanic Points for qualifying Oceanic products/services purchased through their Oceanic Account, as specified on Oceanic's Offers/Rewards Information Page; provided, however, that such Member will not be eligible to use any such Oceanic Points unless and until such Member properly registers for the Program, subject to the terms and conditions herein.
4.5 Posting to Key-Z Account. Oceanic makes no representation or warranty regarding, and is not responsible for, when Points are actually credited to your Key-Z Account. Although Oceanic makes no guaranty as to when Points will be credited, in most instances, Points for qualifying purchases/transactions should be credited to your Key-Z Account within forty-five to sixty (45-60) days of the purchase/transaction. It is your sole responsibility to notify Oceanic of any name or address changes so that we can continue to properly post your Points to the appropriate Key-Z Account.
4.6 Accessing Account. Members may access and view their Key-Z Accounts and Point balances by logging into the "Kupa'a Key-Z Village" page on www.oceanic.com with their membership login ID and password. Members who are Oceanic digital video service subscribers may also view Points balances for corresponding Key-Z Accounts via their digital cable set top/converter box menu guide, as directed by Oceanic from time to time.
4.7 Login/Password Security. You shall be solely responsible for ensuring the confidentiality of your membership account number, login ID and password, which shall be issued for the limited purpose of participating in the Program pursuant to the terms herein. You are solely responsible for any authorized or unauthorized access to and use of your Key-Z Card and/or Key-Z Account. If your login ID and/or password is lost, stolen or otherwise compromised, you shall promptly change such information, or if you are unable to do so, you shall notify Oceanic, whereupon Oceanic or its designee shall suspend use of such login ID and password. By registering for the Program and becoming a Member thereof, you authorize Oceanic to treat any person using your Key-Z Card, Points, Reward Certificates, and/or membership, credit card, or bank account number(s), login ID, password or other information contained or conveyed by your Key-Z Card as you (even if such person is using such item(s) without your authorization, due to theft, mistake or otherwise), and any resulting transactions, obligations or liabilities shall be attributed to you.
4.8 Discrepancies. If you believe that an error or discrepancy exists with respect to your Key-Z Account, you must notify Pacific Wave or other designee of Oceanic, in writing, and include all information sufficient to investigate and verify the suspected error or discrepancy, which notice must be received by Pacific Wave within sixty (60) days of posting of the account statement. All documentation sent to Pacific Wave must be legible and include your full legal name and Key-Z Account number. Oceanic and Pacific Wave will not be responsible for correspondence that is lost or delayed in the mail. Decisions as to errors, what constitutes a qualifying transaction, as well as exceptions, will be made at the sole discretion of Oceanic and/or Pacific Wave. Oceanic and/or Pacific Wave reserve the right to verify and adjust Points prior to or following redemption and/or notice of any alleged error or discrepancy, as Oceanic and/or Pacific Wave determine to be equitable, in their sole discretion and without liability to any Member. Oceanic's and/or Pacific Wave's decision as to any such verification or adjustment, or otherwise with respect to any alleged error or discrepancy, shall be final and binding on all Members.
4.9 Non-Transferable. Except as otherwise expressly provided herein, Points are non-transferable and are void where prohibited. Points have no refund value and are not redeemable for cash. Points are and shall remain the property of Oceanic. Without limiting the foregoing, Members cannot buy or sell Points, and Points may not be transferred (a) upon death, (b) as part of a domestic relations matter, or (c) otherwise by operation of law.
4.10 Fraud. Notwithstanding anything herein to the contrary, in the event of any Member fraud, abuse of privileges, misrepresentations, and/or violation of any term of this Agreement, in addition to all other remedies available at law or in equity, Oceanic reserves the right to deny Program benefits (including cancellation of accrued Points), and/or cancel membership, participation and/or eligibility in the Program and close the account.
4.11 Disclaimer. Oceanic and Pacific Wave make no representation, warranty or guaranty as to (a) the value of any Points, (b) your ability to use or redeem any Points, or (c) the benefits, if any, associated with or arising from any Points. Without limiting the foregoing, Oceanic and Pacific Wave shall have no liability or obligation and shall not be responsible in any way whatsoever in the event that any Points are not honored by a Participating Merchant (including, without limitation, in the event that a particular Participating Merchant ceases business operations, the Program is terminated, or any other reason whatsoever) or in the event that limitations and/or restrictions are placed on the use of any Points. In addition, in the event any Points are not honored by a Participating Merchant or limitations and/or restrictions are placed on the use of any Points, Oceanic and Pacific Wave shall have no obligation to provide you with any replacement or additional Points or Reward Certificates as a result thereof. Further, Oceanic and Pacific Wave shall not be responsible in any manner whatsoever should a Participating Merchant change items available for Reward Certificate redemption or Point values associated with such merchandise.
5. Reward Certificates; Redemption
5.1 Reward Certificates. Subject to the terms and conditions of this Agreement, you will be eligible to redeem valid Points in the form of merchandise or service credit vouchers/certificates to be used to purchase qualifying goods and services of Oceanic and Participating Merchants ("Reward Certificates"). Members may redeem Points for Reward Certificates online at www.oceanic.com, at participating Key-Z Card Kiosks, or, for qualifying Oceanic goods/services only, via their digital cable set top/converter box menu guide, as directed by Oceanic from time to time. Members redeeming Points for qualifying Oceanic goods/services via their digital cable set top/converter box menu guide will not be issued a paper Rewards Certificate; rather, a confirmation code will be issued and reflected on the Oceanic Services bill for the named Oceanic Account holder for each Member household. Oceanic and/or Pacific Wave may change the redemption methods in their sole discretion from time to time. Prior to redemption, the transactions on which Points are calculated/awarded may be audited for compliance with the terms and conditions of this Agreement.
5.2 Redemption Terms. Any Point redemption for Reward Certificates must be made by the authorized Member (i.e., the primary account holder), or such other person that has been authorized to redeem Points by such authorized Member (i.e., an eligible household Member). Reward Certificate redemption must be accompanied by presentation of a valid Key-Z Card key-tag. Oceanic and each Participating Merchant have their own specific rules and regulations relating to redemption offers. Information and terms relating to the redemption of Reward Certificates offered by Oceanic and Participating Merchants may be found at www.oceanic.com by clicking on the particular Offer/Rewards Information Page, which directs you to Oceanic's and/or the Participating Merchant's Rewards/Points information page, as applicable. For Oceanic and each Participating Merchant, you must check the applicable Offer/Rewards Information Page to determine whether, and to what extent, you will be eligible for Reward Certificates offered by Oceanic and/or such Participating Merchant. Reward Certificates are contingent upon you satisfying all of the terms and conditions of this Agreement and all of the terms, conditions, limitations and qualifications listed on the applicable Offer/Rewards Information Page and/or other rules and restrictions on purchase designated at the point of sale. Notwithstanding anything contained in this Agreement to the contrary, to the extent that the applicable Offers/Rewards Information Page and/or a Participating Merchant or Oceanic indicate that Reward Certificates will be granted only for, or are exclusive of any, particular goods or services, no Reward Certificates will be granted or honored for any other goods or services. Further, to the extent that the applicable Offers/Rewards Information Page and/or a Participating Merchant or Oceanic indicate that Reward Certificates for any particular purchase/transaction are limited or restricted or that there are conditions or qualifications that must be satisfied in order to receive Reward Certificates, such limits, restrictions, conditions and/or qualifications shall apply. Oceanic does not endorse, guarantee or warrant any goods and services offered by any Participating Merchant and Oceanic will not be responsible for or liable to any Member for any terms and conditions imposed on Points redemption and/or Reward Certificates by any Participating Merchant.
5.3 Additional Redemption Restrictions. Points will be awarded and can be redeemed for Reward Certificates only if the Key-Z Account on which the Points are earned is active and in good standing (i.e., not in default of any of the terms and conditions of this Agreement). All Reward Certificates and redemption items are subject to availability, and may be modified or cancelled at any time by either the Participating Merchant or Oceanic. Reward Certificates are not redeemable for cash and have no residual or cash value. All selections are final. Generally, Reward Certificates are non-transferable, non-refundable and non-exchangeable, subject to Oceanic's and each Participating Merchant's current rules and policies. Further, Oceanic and Participating Merchants reserve the right to expire Reward Certificates if unused within a designated period of time (subject to applicable law) and/or restrict or prohibit the use of any Reward Certificates in conjunction with any coupon, discount card, or other promotion or special arrangement with Oceanic or a Participating Merchant. Reward Certificate redemption may be reversed by Oceanic and/or Pacific Wave if obtained under such circumstances. Oceanic and Pacific Wave are not responsible for and will not replace lost, stolen, or destroyed Reward Certificates. If you choose to redeem a Reward Certificate for an item that is restricted to adult use, you herby represent and warrant that you have the legal right to purchase such item.
5.4 Release; Indemnity. Notwithstanding anything herein to the contrary, and in addition to any rights or remedies afforded at law or in equity, by accepting or otherwise using of any Reward Certificate, you (and any other individual who uses the Reward Certificate and, if a minor, their parents or legal guardians) accept the terms and conditions herein and release Oceanic and its Related Parties from any liability whatsoever for, and waive any and all causes of action related to, any claims, costs, injuries, losses, or damages of any kind arising out of or in connection with acceptance, possession, use of or inability to use any Reward Certificate (including, without limitation, claims, costs, injuries and damages related to pecuniary loss, personal injuries, death, or damage to or destruction of property), whether under a theory of contract, tort (including negligence), warranty or other theory. If a minor uses a Reward Certificate, each minor's parents or legal guardians further agree to indemnify, defend and hold harmless Oceanic and its Related Parties from any claims, costs, injuries, losses, or damages described herein which may be suffered by such minor.
5.5 Tax Consequences. There may be federal, state or local tax consequences arising from your participation in the Program (including your redemption of Reward Certificates). The determination of tax liability for any federal, state or local taxes that may arise out of your participation in the Program shall be your sole responsibility. If Oceanic is required to report Point awards or Reward Certificate redemption information to taxing authorities, such reporting will be made with respect to the name and tax identification information of the primary account holder on record, regardless of the party redeeming Points. Further, should federal, state or local law impose any tax reporting or filing obligations on Oceanic arising out of your participation in the Program, you agree to timely provide Oceanic with any information that is reasonably needed for Oceanic to comply with any such reporting or filing obligations.
5.6 Questions About Points/Rewards Certificates. If you have further questions regarding Points and/or Reward Certificates in connection with the Program, please call 808-643-5399 and a Pacific Wave customer service representative will assist you.
6. Credit Card Registration and ACH Registration
Following proper enrollment as a Member of the Program, and at your option, you may be eligible to register your Key-Z Card with a valid and unexpired American Express®, Discover®, MasterCard® or Visa® credit card number that has been issued to you (each a "Registered Card") and/or with your valid personal bank checking account ("ACH Check Account") for use in connection with payment for goods or services at certain Participating Merchants and/or other third party merchants or service providers, subject to all terms and conditions imposed by the third party service provider for such Registered Card and/or ACH Check Account. If for any reason your Program membership is cancelled or terminated, Oceanic will close your existing account in the Program and you will no longer be able to use your Key-Z Card as a Registered Card and/or ACH Check Account to pay for goods and services at Participating Merchants and/or other third party merchants or service providers. Oceanic does not represent, warrant or guarantee that any particular Participating Merchant and/or other third party merchant or service provider will accept your Registered Card and/or ACH Check Account as payment for goods or services, as certain Participating Merchants and/or other third party merchants or service providers may not accept such payment methods and/or one or more cards of the type described above (e.g., American Express®, Discover®, MasterCard® or Visa®). In no event shall Oceanic have any liability or responsibility for any purchase or attempted purchase made using a Registered Card and/or ACH Check Account. Use of any Registered Card and/or ACH Check Account is subject to all terms and conditions between you and your credit card company, banking institution or similar service provider (each, a "Credit Provider") and Oceanic will not be responsible or liable to any Member, Registered Card and/or ACH Check Account user for any terms and conditions imposed by such Credit Provider with respect to the use of any Registered Card and/or ACH Check Account.
7. Right to Suspend, Cancel or Terminate
7.1 Inactive Accounts. Oceanic reserves the right to terminate, suspend or place in inactive status your Key-Z Account if you fail to accumulate Points for any consecutive twelve (12) month period. It is your sole responsibility to manage your Key-Z Account and to ensure its validity and to maintain its active status.
7.2 Failure to Maintain Good Standing. If for any reason the Oceanic Account for the primary account holder of the Member household falls out of good standing, at the sole discretion of Oceanic, any Points accrued for such account (and all related household accounts) shall be suspended and unavailable for Reward Certificate redemption and any unredeemed Reward Certificates for such account (and all related household accounts) shall not be available for redemption of qualifying Oceanic products/services, until such time as the Oceanic Account is returned to good standing. For such period rights to such Points shall be deemed forfeited.
7.3 Term; Termination; Survival. This Agreement is effective upon acceptance by you and shall continue in full force until terminated by operation of law or by either you or us in accordance with the terms of this Agreement. You may terminate this Agreement at any time, with or without cause, upon notice to Oceanic. Oceanic reserves the right to terminate the Program, at any time and for any reason without prior notice, unless otherwise required by law. Upon such termination, your right to earn and redeem accumulated Points and/or Rewards Certificates will automatically terminate, regardless of your participation in the Program. If for any reason your Program membership AND/OR THE OCEANIC ACCOUNT FOR THE PRIMARY ACCOUNT HOLDER OF THE MEMBER HOUSEHOLD is cancelled or terminated by SUCH ACCOUNT HOLDER or Oceanic, any and all Points accrued AND ANY UNREDEEMED REWARD CERTIFICATES FOR SUCH ACCOUNT (AND ALL RELATED HOUSEHOLD ACCOUNTS) will be deemed forfeited. If, at the sole discretion of Oceanic, your Program membership is reinstated with Oceanic within ninety (90) days of such cancellation or termination, all forfeited Points may be returned to your Key-Z Account and available to use for Reward Certificate redemption. Upon termination of this Agreement and/or your membership for any reason, except as otherwise expressly provided herein: (a) you shall cease being a Member of the Program and shall have no further right to participate in the Program; (b) you shall not be authorized to access your Key-Z Account; (c) Oceanic may deny access to your Key-Z Account; and (d) you must promptly destroy and cease use of all Documents (as defined in Section 9.2, below) or other materials downloaded or otherwise obtained from the Program and any related Oceanic web site. Any provision of this Agreement that, by its nature, is intended to survive, shall survive the expiration or termination of this Agreement and/or your membership in the Program, including without limitation, Sections 5.4, 5.5, 7.3, 9.1, 9.2 and 12 - 25.
8. Use and Purpose
8.1 Non-Commercial, Personal Use Only. The Program is made available for your personal, non-commercial use only. Any use of the Program not expressly permitted in this Agreement (including any attempt to use the Program or any instrumentality of the Program for commercial use, advertising or solicitation) is prohibited.
8.2 No Unlawful Use. The Program, and any instrumentality thereof, may be used for lawful purposes only. You agree that you shall not, nor shall you permit, assist or encourage any third party to: (a) upload, post or transmit via or in connection with the Program or any Oceanic web site (i) any unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene, pornographic, profane, abusive, hateful, or otherwise objectionable information or content of any kind, including without limitation, any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any law, including violations of any intellectual property rights or other rights of a third party; or (ii) any materials subject to non-negotiable licenses such as "open source" or "freeware" software licenses (i.e., license terms requiring that such materials be disclosed or distributed in source code form, be licensed for the purpose of making derivative works, or be redistributed at no charge) or that contain a virus, cancelbot, Trojan horse, worm or other harmful components; or (b) in connection with the Program or any Oceanic web site (i) create a false identity or otherwise attempt to mislead any person as to the identity, source or origin of any communication, (ii) send unsolicited commercial email to any person, or (iii) otherwise interfere, disrupt or attempt to gain unauthorized access to any computer or cable system, server, network or account for which you do not have authorization to access or at a level exceeding your authorization.
9. Ownership
9.1 Trademarks. "Time Warner Cable" and the Time Warner Cable family of marks, logos and titles, as well as the "Kupa'a Key-Z" and "Kupa'a Key-Z Village" family of marks, logos and titles, are registered and/or common-law trade names, trademarks or service marks of Oceanic or its licensors. All other products, company names, or trademarks or service marks appearing on or in connection with the Program and any Oceanic web site are the property of their respective owners. Nothing contained in this Agreement or the Program shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any mark displayed on or in connection with the Program or any Oceanic web site without prior written permission of Oceanic or the respective mark owners.
9.2 Documents; Property. Unless otherwise expressly noted, all written text contained within or describing the Program (the "Documents"), as well as all other materials and properties, including, without limitation, the organization, design, compilation, look and feel, graphics, images, illustrations, icons, photographs, software, video clips, music, and other works that are part of the Program, along with the Program itself (including, without limitation, any services provided by or on behalf of Oceanic thereunder) and/or any Oceanic web site (collectively, with the Documents, the "Property"), are protected by patents, copyright, trademarks, trade dress, trade secrets and/or other intellectual property and proprietary rights laws, which are owned by or licensed to Oceanic. All right, title and interest in and to the Property, including without limitation, all intellectual property and proprietary rights therein, are reserved and will at all times remain with Oceanic and/or its licensors.
9.3 Limited License; Restrictions. Oceanic hereby grants you a non-exclusive, limited, personal, non-transferable, revocable, right and license, without right to sublicense, to access and print one (1) single copy of the Documents for your internal, personal, and non-commercial use in learning about, evaluating, and participating in the Program. No right, title or interest in or to any downloaded Document is transferred to you as a result of any such copying. Any other use of the Documents without Oceanic's prior written consent is expressly prohibited. You agree that you will not alter or remove any copyright notice or proprietary legends and that any copy of the Documents made by you shall include Oceanic's or any third party provider's copyright notice or any other notice included therein. No other permission is granted to you to print, copy, reproduce, perform, distribute, transmit, upload, download, store, publish, display in public, alter, modify, translate, create derivative works from, compile facts or information from, sell or participate in any sale of, or commercially exploit in any way, in whole or in part, any of the Property. Without limiting the foregoing, you shall not (a) use any content contained in the Property in any manner that may give a false or misleading impression, attribution or statement as to Oceanic or any third party referenced therein, (b) use the Property to develop any application or program having the same primary function as the Program, or (c) reverse engineer, disassemble, decompile or otherwise attempt to derive any source code or other source material for the Property, in whole or in part. Oceanic's posting of any Property on any Oceanic web site or otherwise does not constitute a waiver of any right in and to such Property. Except as expressly provided herein, nothing herein shall be construed as conferring any license under Oceanic's and/or its licensor's intellectual property rights, whether by estoppel, implication or otherwise. All rights not expressly granted herein are reserved.
10. Privacy Notice
The "Kupa'a Key-Z Rewards Program Privacy Notice" is accessible at www.oceanic.com and describes the collection, use, and sharing of personally identifiable and other information that may be provided in connection with your membership and participation in the Program and supplements Oeanic's disclosures under the Cable Communications Policy Act of 1984. You hereby acknowledge receipt of the "Kupa'a Key-Z Rewards Program Privacy Notice", which is deemed to form a part of this Agreement, and hereby expressly consent to the collection, use and disclosure of personally identifiable and other information as described in the "Kupa'a Key-Z Rewards Program Privacy Notice", as it may be amended from time to time.
11. Web Site Links
11.1 No Framing/Linking. You agree not to frame any Oceanic web site or take other action that alters the visual presentation thereof. You also agree not to link to any Oceanic web site without prior written approval from Oceanic.
11.2 Third Party Sites. The Program and/or related Oceanic web sites may contain links to third party web sites. Oceanic is not responsible for, nor does it control, the content, products, or services provided by any third party linked web sites. Oceanic provides the linked sites to you only as a convenience and the inclusions of any such link shall not be deemed an endorsement or guarantee by Oceanic with respect to any products, services, information, or recommendations provided by or accessible through any third party linked web sites. Oceanic shall not be liable for any failure of products or services or the inaccuracy of any information offered or advertised on such web sites. In addition, each third party web site may contain a privacy policy different than that of Oceanic and your linking to any off-site pages or other third party sites is entirely at your own risk.
12. User Input/Submissions
While we appreciate your interest in Oceanic and the Program, we do not want and cannot accept any ideas or information you consider to be confidential and/or proprietary. Except with respect to your personally identifiable information (as expressly provided for in Oceanic's "Kupa'a Key-Z Rewards Program Privacy Notice" accessible at www.oceanic.com, any suggestions, submissions, comments, ideas, concepts, know-how, techniques material or feedback conveyed, offered or transmitted by you in connection with the Program or any Oceanic web site (collectively, the "Submissions") shall be deemed non-confidential and Oceanic shall have no obligation of any kind with respect to such Submissions. You hereby grant to Oceanic and its licensees an irrevocable, perpetual, worldwide, royalty-free, non-exclusive right and license to use, reproduce, modify, display, transmit, perform, adapt, publish, translate, create derivative works from, distribute, sublicense, commercialize and disclose the Submissions in any form, anywhere and for any purpose, in any medium and through any methods of distribution, transmission and display, whether now known or hereafter devised. Oceanic shall have no obligation to compensate you for any such Submissions in any manner. You hereby represent and warrant that (a) you own or otherwise have the right to grant the foregoing license to Oceanic with respect to your Submissions; (b) your Submissions and any use thereof by Oceanic will not infringe or violate the rights of any third party; and (c) your Submissions will not contain any unlawful, libelous, defamatory, abusive or obscene material. You are and shall remain solely responsible for the content of any Submissions you make and acknowledge that Oceanic is under no obligation to respond to or use any Submission you may provide.
13. Disclaimer; Limitation of Liability
13.1 Warranty Disclaimer. THE PROGRAM AND ANY OCEANIC WEB SITES OR SERVICES PROVIDED IN CONNECTION THEREWITH ARE PROVIDED "AS IS." OCEANIC AND ITS RELATED PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PROGRAM, ANY OCEANIC WEB SITES OR SERVICES PROVIDED IN CONNECTION THEREWITH, THEIR USE OR PERFORMANCE, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN, WHETHER EXPRESS, IMPLIED, STATUTORY, ORAL, IN WRITING OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND THE SAME ARE HEREBY EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OCEANIC AND ITS RELATED PARTIES DO NOT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY, SUITABILITY, USE, PERFORMANCE OR RESULTS OF USE OF THE PROGRAM OR ANY OCEANIC WEB SITES OR SERVICES PROVIDED IN CONNECTION THEREWITH, OR THAT ANY OF THE FOREGOING (INCLUDING ANY BENEFITS ASSOCIATED WITH THE PROGRAM) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR THAT THE FUNCTIONS OF ANY OF THE FOREGOING WILL BE UNINTERRUPTED, VIRUS-FREE, ERROR-FREE, OR COMPLETELY SECURE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OCEANIC OR ITS RELATED PARTIES, THIRD PARTY SERVICE PROVIDERS, LICENSOR(S) OR ANY OTHER PERSONS SHALL CREATE ANY WARRANTY, REPRESENTATION, OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
13.2 Limitation of Liability. NEITHER OCEANIC NOR ITS RELATED PARTIES SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF OR INABILITY TO USE THE PROGRAM, POINTS, REWARD CERTIFICATES OR ANY OCEANIC WEB SITES OR SERVICES PROVIDED IN CONNECTION THEREWITH, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT OR NEGLIGENCE), EVEN IF OCEANIC OR ITS RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU ARE DISSATISFIED WITH THE PROGRAM, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO DISCONTINUE YOUR USE OF AND PARTICIPATION IN THE PROGRAM. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, OCEANIC'S AND ITS RELATED PARTIES' TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE GREATER OF (A) ANY FEES ACTUALLY PAID BY YOU TO OCEANIC FOR USE OF AND PARTICIPATION IN THE PROGRAM, OR (B) TEN DOLLARS (U.S. $10.00). YOU ACKNOWLEDGE AND AGREE THAT THE DISCLAIMERS AND LIMITATIONS HEREIN REFLECT A FAIR ALLOCATION OF RISK AND THAT OCEANIC WOULD NOT ENTER INTO THIS AGREEMENT OR OTHERWISE OFFER THE PROGRAM WITHOUT SUCH LIMITATIONS ON ITS LIABILITY, AND YOU AGREE THAT THE FOREGOING DISCLAIMERS AND LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, IN SUCH JURISDICTIONS, THE PARTIES AGREE THAT THE LIABILITY OF OCEANIC AND ITS RELATED PARTIES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH JURISDICTION.
14. Indemnification
You agree to defend, indemnify and hold harmless Oceanic and its Related Parties (collectively, the "Indemnified Parties"), from and against all third party claims, demands, suits, losses, damages, costs, awards, judgments and expenses (including the costs of investigation and reasonable attorneys' fees) based on, arising out of or relating to: (a) your breach or alleged breach of this Agreement or the documents incorporated herein by reference; (b) your improper use or receipt of any services provided by Oceanic in connection with the Program and/or any item acquired through the Program from a Participating Merchant; or (c) your acts or omissions (including negligence or strict liability and including any injury to any person (including but not limited to death) or property) related to the subject matter of this Agreement, including, without limitation, any alleged violation of any applicable law or infringement of any third party's intellectual property or other rights. You shall promptly reimburse the Indemnified Parties for any liabilities incurred in connection with any such claims. The Indemnified Parties may have their own counsel participate in the defense of any such claim, provided that the costs of such counsel shall be borne by the Indemnified Parties. You shall not enter into any settlement that purports to bind the Indemnified Parties or that would impose an unindemnified monetary obligation on the Indemnified Parties without Oceanic's prior written consent, not to be unreasonably withheld or delayed.
15. Governing Law and Dispute Resolution
This Agreement shall be construed in accordance with the laws of the State of Hawaii, other than such laws, rules, regulations and case law that would result in the application of the laws of another jurisdiction other than the State of Hawaii. ANY PAST, PRESENT, OR FUTURE CONTROVERSY OR CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE RESOLVED BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES, INCLUDING, IF APPLICABLE, THE SUPPLEMENTARY PROCEDURES FOR THE RESOLUTION OF CONSUMER RELATED DISPUTES. The arbitration shall be held in
16. Non-Transferability/Assignment
Except as otherwise expressly provided herein, your membership in the Program, your use of the Points accrued through the Program, and your redemption of Reward Certificate are non-transferable. You may not transfer or assign this Agreement or any rights or obligations hereunder, in whole or in part (and whether by contract, operation of law, or otherwise), to any other person or entity without the prior written consent of Oceanic. Any such transfer or assignment without Oceanic's written consent shall be null and void. Oceanic may transfer or assign this Agreement, any rights or obligations hereunder, in whole or in part, or the Program, to any person or entity without your consent.
17. Force Majeure
Except for the obligation of payment, neither party shall be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war and terrorism, embargoes, changes in governmental regulations, epidemics, fire, communication line failures, power failures, earthquakes, other disasters or any other reason where failure to perform is beyond the reasonable control of, and not caused by, the non-performing party.
18. Entire Agreement
This Agreement and the documents incorporated herein by reference represent the entire agreement of the parties regarding the subject matter hereof, and supersede any prior or contemporaneous understandings, whether written or oral. This Agreement, the documents incorporated herein by reference, and any information posted on any Oceanic web site or otherwise provided to you by Oceanic shall be construed as consistent with one another whenever possible; provided, however, that in the event of any conflict between any of the terms and conditions of this Agreement and the documents incorporated herein by reference, on the one hand, and any information posted on any Oceanic web site or otherwise provided to you by Oceanic, on the other hand, this Agreement shall prevail.
19. Waiver
No delay or omission by either party to exercise any right or power will impair any such right or power or be construed to be a waiver thereof. A waiver by any party of any of the covenants, conditions, or obligations to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition, or obligation herein contained. No change, waiver, or discharge hereof shall be valid unless in writing and signed by an authorized representative of the party against which such change, waiver, or discharge is sought to be enforced.
20. Independent Contractors
Ocean and you are independent contractors, each acting for its own account, and you are not authorized to make any commitment or representation, or incur any obligation, express or implied, on Oceanic's behalf.
21. Severability
If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
22. Remedies
The rights and remedies provided in this Agreement or otherwise under law shall be cumulative and the exercise of any particular right or remedy shall not preclude the exercise of any other rights or remedies in addition to, or as an alternative of, such right or remedy, except as expressly provided otherwise in this Agreement.
23. No Third Party Beneficiaries
Nothing in this Agreement is intended to confer any rights or remedies on any persons other than the parties to it. This Agreement shall not be construed to relieve or discharge any obligations or liabilities of third persons, nor shall it be construed to give third persons any right of subrogation or action over against any party to this Agreement.
24. Construction
For purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) the terms defined herein include the plural as well as the singular and vice-versa; (b)words importing gender include all genders; (c) all references to this Agreement and the words "herein", "hereof", "hereto" and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision; (d) all Section headings are for convenience only and shall not affect the interpretation or construction of this Agreement, and (e) the words "including," "included" and "includes" mean inclusion without limitation. In the event of any ambiguities in the language hereof, there shall be no inference drawn in favor of or against either party. A printed version of this Agreement and of any acceptance given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
25. Notice
Except as otherwise expressly provided herein, any notice, request, demand or other communication required or permitted to be given or made by you pursuant to this Agreement shall be in writing and shall be deemed given on the earliest of (a) actual receipt, irrespective of the method of delivery, (b) on the delivery day following dispatch if sent by express mail (or similar next day air courier service), or (c) on the sixth (6th) day after mailing by registered or certified United States mail, return receipt requested, postage prepaid and addressed as follows:
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Pacific Wave Marketing, LLC |
With a copy to: |
Time Warner Cable Inc.
and Oceanic Time Warner Cable |