CUSTOMER TERMS OF SERVICE

Nalu Bookings LLC,, a Hawaiian limited liability company (“Nalu”, “we”, “us” or “our”), develops, markets and licenses a proprietary on-line platform to streamline and automate charter tour and attraction bookings and reservations (“Service”) for use by a provider of reservation-based activities (“Company”) and you, its (potential) customer (“Customer”, “you” or “your”). Nalu enters into this Agreement (defined below) with you for your access to and use of our Service. The “Effective Date” of this Agreement is the date you initially access the Service. These Customer Terms of Service (“Terms”), and the Privacy Notice found at www.nalubookings.com/customer-privacy-policy, including any and all attachments, exhibits or schedules thereto and hereto, each and all attached and incorporated herein by reference, are collectively the “Agreement”. This Agreement specifically excludes and disavows any terms or conditions provided by Company in any invoice, purchase order, receipt, acknowledgement or other form or document and all such terms and conditions are void and without effect.

PLEASE READ THESE TERMS CAREFULLY. BY CLICKING ACCEPT OR ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS AND YOU REPRESENT AND WARRANT YOU HAVE THE AUTHORITY TO AGREE TO THESE TERMS; IF YOU DO NOT HAVE SUCH AUTHORITY, NO RIGHT OR LICENSE IS GRANTED HEREIN AND YOU MUST NOT ACCESS OR USE, OR PERMIT ANY ACCESS TO, THE SERVICE. IF YOU DO NOT AGREE TO ALL THESE TERMS, THEN DO NOT CLICK ACCEPT AND YOU HAVE NO RIGHT OR LICENSE TO, AND MAY NOT ACCESS OR USE, THE SERVICE.

Nalu may, in its sole discretion, modify these Terms at any time in its sole discretion effective upon posting the modified Terms through the Service. You are responsible for regularly reviewing any information posted through the Service, including such modified Terms, if any. If you do not agree to the modified Terms, you agree to immediately stop using the Service. CONTINUED ACCESS OR USE OF THE SERVICE AFTER SUCH POSTING (OR OTHER NOTIFICATION) MEANS YOU ACCEPT AND AGREE TO BE BOUND BY THE MODIFIED TERMS.

1. SERVICES AND SUPPORT

1.1. Subject to the terms and conditions of this Agreement, Nalu hereby provides and grants you access to use the Service. The “Service” is Nalu’s online booking management system reservation intake and processing, as well as payment processing facilitation. Nalu will provide you with reasonable technical support services in accordance with Nalu’s standard practice. Nalu may release new versions of, and updates to, the Service at any time in its sole discretion.

1.2. Through the Services, you may book and reserve (“Bookings”) Company’s offering(s) (“Tours”). Each Booking is a direct legal contract between Company and you; in no event shall Nalu be deemed a party to a Booking. In all events, Company is the merchant-of-record with respect thereto; Nalu merely acts as Company’s limited purpose agent for the purpose of reserving and paying for Tours through the Service. Additionally, when you enter into a Booking with Company, you agree and understand that you accept any terms, conditions, rules, and restrictions associated with said Bookings’ (and applicable Tour(s)) relevant policies and practices.

1.3. Company is solely and fully responsible and liable for honoring the Bookings and providing and performing the Tours, as set forth in Company’s standard terms and conditions for providing Tours on its website (or as otherwise provided to Customers). Except for the limited purpose of Nalu providing the Service on behalf of Company, this Agreement does not create any agency, partnership, joint venture, employment or other relationship between Nalu and you other than that of independent contractors.

1.4. To the extent prohibited by applicable law, the Service is not intended for and should not be used by anyone under the age of eighteen (18). By using the Service, you represent that: (a) you are at least eighteen (18) years old; (b) you possess the legal authority to enter into binding legal obligations; and, (c) you will only use the Service to make a legitimate Booking for yourself or for another person for whom you are legally authorized to represent.

1.5. Company is solely responsible for the information regarding Company’s products and services that can be booked through the Service. More specifically, it is the Company’s sole responsibility that the information provided to you regarding Company’s Tours (and the terms and conditions related thereto) is complete, correct, adequate, and current. Nalu makes no representations or warranties of any kind, whether express or implied, to you relating to information about Company’s products and services.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1. You will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, any software, documentation or data related to the Services (“Software”) or any content featured or displayed through the Service; modify, translate, or create derivative works based on the Services, any Software or such content (except to the extent expressly permitted by Nalu or authorized within the Services); use the Services, any Software or such content for timesharing or service bureau purposes or for purposes other than their intended purpose or otherwise for the benefit of a third party; or remove any proprietary notices or labels from the Services.

2.2. You will not: (a) use any robot, spider, scraper or other automated means to access the Service for any commercial purpose without express written permission of Nalu; (b) take any action that imposes, or may impose in Nalu sole discretion, an unreasonable or disproportionately large load on our infrastructure; (c) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (d) bypass any measures Nalu may use to prevent or restrict access to the Service.

2.3. You will not collect and/or use any images or third-party content on the Service. You shall not create any derivative use of the Service or its contents, and any downloading or copying of information for the benefit of a third-party is strictly forbidden. Except as expressly permitted by these Terms, the Service, or any portion thereof, may not be reproduced, sold, resold, visited or otherwise exploited for any commercial purpose without Nalu’s express written consent.

2.4. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You shall also be responsible for maintaining the security of the Equipment, account passwords (including but not limited to administrative and user passwords) and files.

2.5 Nalu retains the right at its sole discretion to deny access to anyone to this Service, at any time and for any reason, including without limitatoin for violation of these Terms.

3. PAYMENTS & FEES

3.1. Nalu charges, and you agree to pay, a fee for using the Service to obtain (and make payment for) for Bookings for Tours provided by Company (“Booking Fee”). The Booking Fee may be collected from you together with the Activity Price (defined below). The amount of the Booking Fee is clearly displayed in the booking funnel. The Booking Fee is inclusive of taxes.

3.2. In the event that Copmany refunds a portion of the Activity Price to you, you agree that Nalu Bookings has the right to retain the full amount of the applicable Booking Fee as consideration for services rendered. Except as otherwise provided for within these Terms, Booking Fees are non-refundable. Notwithstanding the foregoing, Nalu may refund Booking Fees at its discretion.

4. THIRD-PARTY PAYMENT PROCESSORS

4.1. Nalu’s responsibilities are limited to providing the Service for your use, which includes (i) facilitating all payments for Bookings made using the Service, (ii) acting as a limited purpose payment agent on your behalf to collect the amount to be paid to the Company under the Bookings for the purchased product or service (“Activity Price”), and (iii) paying the Activity Price to the Company on your behalf. To fulfill these responsibilities, Nalu engages with payment services providers (“PSP”). Nalu disclaims all liability and bears no responsibility resulting from or related to i) any delay or unavailability of the PSP through the Service, or (ii) the fulfillment by the PSP obligations regarding actual payment.

4.2. Stripe. Nalu uses Stripe as its PSP. You agree to Stripe’s Stripe Connected Account Agreement which includes the Stripe Terms of Service(collectively, the “Stripe Services Agreements”). By agreeing to this Agreement or continuing to use the Services, you shall be bound by the Stripe Services Agreements, as the same may be modified by Stripe from time to time.

4.3. You authorize Nalu and the applicable PSP, as part of fulfilling the payment facilitation responsibilities described above, to charge your credit card for the Activity Price and the Booking Fee or obtain pre-authorization via your credit card for the Activity Price and the Booking Fee, including any applicable taxes.

5. REPRESENTATIONS & WARRANTIES; DISCLAIMERS

5.1. Nalu represents, warrants and covenants that it will perform the Services in a timely, professional and workmanlike manner in accord with industry standard. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Nalu or by third-party providers, or because of other causes beyond Nalu’s reasonable control, but Nalu shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. Your sole remedy for breach of this warranty is to stop using the Service.

5.2. The information displayed through the Service may contain technical inaccuracies, typographical errors, or other discrepancies including, but not limited to, rates, fees, or availability in connection with your Booking. BECAUSE COMPANY CONTROLS THE INFORMATION DISPLAYED IN THE SERVICE, NALU CANNOT AND DOES NOT ENDORSE THE ACCURACY OF SUCH INFORMATION AND MAKES NO WARRANTIES OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS OR IMPLIED. You agree that Nalu is not responsible for any errors, inaccuracies, or omissions related to information displayed in the Service. You agree that Nalu has the right to make any changes, corrections, or cancellations to any errors, inaccuracies, or omissions in the Service if requested to undertake such actions by the Company.

5.3. Nalu is not responsible for communication failures, errors, difficulties, or other malfunctions, nor is it responsible for any lost, stolen, or misdirected transactions, transmissions, messages, or entries on or in connection with the Service. The Service may not be continuously available due to (i) maintenance or repairs, (ii) computer problems, (iii) disruptions in Internet service, or (iv) other unforeseen circumstances.

5.4. You represent, covenant and warrant that you will use the Services only in compliance with Nalu’s standard published documentation then in effect and all applicable laws and regulations. Although Nalu has no obligation to monitor your use of the Services, Nalu may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

5.5. Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND NALU EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE AND AGREE THAT NALU DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE, AND NO INFORMATION, GUIDANCE OR ADVICE DELIVERED BY NALU THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

6. CONFIDENTIALITY; PROPRIETARY RIGHTS

6.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information means any information provided by the Disclosing Party to the Receiving Party that is marked or otherwise identified as “confidential” or “proprietary” and concerning such Disclosing Party including without limitation all tangible, intangible, visual, electronic, now-existing or future information such as: (a) trade secrets; (b) financial information, including pricing; (c) technical information, including research, development, procedures, algorithms, data, designs, code, and know-how; (d) business information, including operations, planning, marketing interests, and products; and (e) all other information which would, due to the nature of the information disclosed or the circumstances surrounding such disclosure, appear to a reasonable person to be confidential or proprietary (despite a lack of marking or other identification). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof or any information that the Receiving Party can document (w) is or becomes generally available to the public, or (x) was in its possession or known by it prior to receipt from the Disclosing Party, or (y) was rightfully disclosed to it without restriction by a third party. To the extent the Receiving Party is required by law to disclose Confidential Information of the Disclosing Party, it shall provide notice thereof to the Disclosing Party (if permitted) and cooperate with the Disclosing Party in limiting any such disclosure.

6.2. Nalu shall own and retain all right, title and interest in and to (a) the Services and Software, and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services, Software or support, and (c) all intellectual property rights related to any of the foregoing, including but not limited to any patents, copyrights, copyright registrations and applications, trade secrets, and know-how, databases, data compilations and collections, customer and technical data, software applications, programs and code, trademarks, trade names, logos, service marks, designs, emblems, signs, insignia, slogans, other similar designations of source or origin, domain names and web addresses, and any registrations or applications for registration for any of the foregoing used in or relating to the provision of the Services or Nalu’s business or operations more generally.

6.3. All of the content featured or displayed on or through the Service, including without limitation text, graphics, photographs, images, sound, and illustrations (“Content”), is owned, controlled or licensed by Nalu or the Company. All elements of the Service, including without limitation the general design and the Content, are protected by trade dress, copyright, moral rights, trademark and other laws relating to intellectual property rights. The Service may only be used for the intended purpose for which such Service is being made available. The Service, its Content and all related rights shall remain the exclusive property of Nalu, Company or their respective licensors. You will not remove any copyright, trademark or other proprietary notices from material found on the Service.

6.4. Notwithstanding anything to the contrary, Nalu shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies, and Nalu will be free (during and after the Term) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Nalu offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

7. TERM AND TERMINATION

7.1. This Agreement commences on the Effective Date and continues for so long as necessary to complete the Bookings and Tour (“Term”). Nalu may terminate this Agreement at any time for any reason in its sole discretion by providing notice to you.

7.2. All sections of this Agreement which by their nature should survive termination will survive expiration or termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

8. LIMITATION OF LIABILITY

8.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON RESULTING FROM NALU’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NALU SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND NALU’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE BOOKING FEES RETAINED BY NALU FOR THE SERVICES UNDER THESE TERMS, IN EACH CASE, WHETHER OR NOT NALU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE AN ESSENTIAL BENEFIT OF THE BARGAIN BETWEEN THE PARTIES.

9. PUBLICITY

9.1. You shall not (a) make, publish, or communicate, in any online or public forum, any disparaging, defamatory, maliciously false, or disparaging remarks, comments, or statements concerning, or (b) engage in any action that is unfair, misleading, deceptive, or that tends to disparage, or dilute the value of, or reflect negatively upon, the Service, Nalu or its directors, officers, agents, personnel, products, services, vendors, customers, or partners.

9. MISCELLANEOUS

10.1. This Agreement will be governed by and construed in accordance with the laws of the State of Hawaii, without regard to its conflict of laws principles. Each party hereby irrevocably consents to the exclusive jurisdiction and venue in the state and federal courts in Honolulu, Hawaii, in connection with any action or dispute arising between the parties under or in connection with this Agreement. In any action or suit to enforce any right or remedy under this Agreement, the prevailing Party will be entitled to recover its costs, including reasonable attorneys’ fees. You agree that any claim or cause of action under these Terms must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred. In the event of any controversy or dispute between Nalu and you arising out of or in connection with your use of the Service, the parties shall attempt, promptly and in good faith, to resolve any such dispute.

10.2. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Nalu’s prior written consent. Nalu may transfer and assign any of its rights and obligations under this Agreement without consent in the event of a merger, acquisition, or to a subsidiary or affiliate controlled by, or under common control with, Nalu. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

10.3. Other than the payment of the Booking Fee(s), neither party shall be liable hereunder in the event of the following force majeure events: war (whether declared or not), civil war, terrorism, riots, acts of war, a pandemic, epidemic, natural disaster or extreme natural event, fire, flooding, import and export restrictions, government measures, and disruptions in the supply of energy.