Last Updated: 01/12/2021
Welcome to http://www.elenalaviajera.com (the “Website”), operated by Elena La Viajera LLC, a Hawaii limited liability company (“Elena La Viajera”, “we”, “our”, or “us”). These Terms and Conditions of Use (the “Terms”, “Terms and Conditions”) set forth the terms and conditions which govern your use of the Website. Please read this information carefully before using and working with Elena La Viajera.
USE OF THIS WEBSITE.
IF YOU DISAGREE WITH THESE TERMS AND CONDITIONS, PLEASE DO NOT USE THIS WEBSITE.
These Terms may be updated from time to time, at Elena La Viajera’s sole discretion. It is your responsibility, as the viewer or customer, to check these Terms regularly to see if any may have changed, and to alert Elena La Viajera if you do not agree with the changes that have been made.
These Terms and Conditions are between Elena La Viajera and you for online usage. By using our Website, you are accepting these Terms and Conditions.
ELENA LA VIAJERA SERVICES
Elena La Viajera is here to provide you with digital storytelling services including but not limited to lifestyle blogging, writing, photography and videography content creation.
You acknowledge and agree that you will consult with your physician or other healthcare professional if you have any questions or wish to seek advice regarding a medical condition, your diet, nutritional supplements, an exercise regimen or any other matter related to your health or general well-being, rather than relying on this Website. Elena La Viajera cannot and does not assess, verify or guarantee the adequacy, accuracy or completeness of any material or the suitability or safety of any product or service provided on this Website. You bear sole responsibility for your own health and diet research and decisions.
THIS SITE DOES NOT PROVIDE ANY MEDICAL ADVICE
Any information on this Website is provided for educational purposes only and is not intended as a substitute for the advice provided by your physician or other healthcare professional. You should not use the information on this Website for diagnosing or treating a health problem or disease, or prescribing any medication or other treatment. You should always speak with your physician or other healthcare professional before taking any medication or nutritional, herbal or homeopathic supplement, or adopting any treatment for a health problem. If you have or suspect that you have a medical problem, promptly contact your healthcare provider. Never disregard professional medical advice or delay in seeking professional advice because of something you have read on this Website. Information provided on this Website and the use of any products or services purchased by you on our Website DOES NOT create a dietitian, physician or other patient relationship between you and any of the dietitians or physicians affiliated with our Website. Information and statements regarding dietary supplements available on this Website have not been evaluated by the Food and Drug Administration and are not intended to diagnose, treat, cure, or prevent any disease. Elena La Viajera shall not be held liable or responsible for any errors or omissions on this Website or for any damage you may suffer as a result of failing to seek professional advice.
DISCLAIMER AND REPRESENTATIONS AND WARRANTIES.
THE PRODUCTS AND SERVICES ARE PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS. NEITHER ELENA LA VIAJERA NOR ANY OF ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES OR AGENTS MAKE ANY REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER AS TO THE PRODUCTS OR SERVICES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
LIMITATIONS OF OUR LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ELENA LA VIAJERA, ITS OWNERS OR ITS CONTRACTORS AND EMPLOYEES, BE LIABLE TO YOU FOR ANY LOSS, DAMAGE OR INJURY OF ANY KIND INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS OR GOOD-WILL, ARISING OUT OF OR IN CONNECTION WITH (A) THE SERVICE, (B) THESE TERMS OR (C) YOUR MISUSE OF THE SERVICE OR ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICE. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE OR ANY OTHER LEGAL OR EQUITABLE THEORY. IN ALL CIRCUMSTANCES, ELENA LA VIAJERA’S MAXIMUM COLLECTIVE LIABILITY TO YOU FOR DAMAGES FROM ANY AND ALL CAUSES, AND YOUR MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO $100.00 USD. ANY SUCH CLAIM MUST BE COMMENCED WITHIN ONE YEAR OF THE INTIAL INCIDENT GIVING RISE TO THE CLAIM.
NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS HEREIN DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM COMPANY INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
Our service contains but is not limited to: (i) materials and other items relating to Elena La Viajera and its services, and similar items from our licensors and other third parties, including any content that constitutes copyrightable materials under the United States Copyright Act; and (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities including those of Elena La Viajera, our licensors and other third parties (collectively “Elena La Viajera Content”). All rights, titles, and interest in and to our service and Elena La Viajera Content is the sole property of Elena La Viajera or those who we’ve received permission from or have licensed to, and is protected by the various state and federal intellectual property and unfair competition rights and laws to the fullest extent possible. You should assume that any material, including our services, designs, digital content, related services, and other protectable assets of Elena La Viajera, whether contained on our Website or otherwise, are proprietary and either trademarked or copyrighted, whether at common law, federally or internationally. In the instance of perceived infringement, you agree to immediately cease and desist from your usage, and agree to injunctive relief as sought by Elena La Viajera. If you wish to use any of the information contained on the Website, please first contact Elena La Viajera at .
SETTING UP AN ACCOUNT
Certain features of our services may require you to register for an account. When registering you agree to: (i) provide and maintain true, accurate, current, and complete information; (ii) protect and prevent unauthorized access to your account; and (iii) immediately notify us of any suspected or actual unauthorized use of your account or breach of security. As the owner and operator of your account, you are solely responsible for all activities that occur under it, whether or not you authorized the activity. Elena La Viajera is not liable for any loss or damage to you or any third party arising from your failure to comply with any of the foregoing obligations.
Please note that any payment terms presented to you are deemed part of these Terms.
You agree that you are responsible for all payments and taxes incurred hereunder. All purchases are secured through our Website, and thus we use a third-party payment processor to bill you. You acknowledge and agree that any credit card and related billing and payment information that you provide to us must be accurate and may be shared by us with companies who work on our behalf, such as our payment processor and/or credit agencies, for the purposes of effecting payment to us. The processing of payments will be subject to the terms, conditions and privacy policies of the payment processor in addition to these Terms. We are not responsible for error by the payment processor. You agree to pay us all charges at the prices then in effect in accordance with the applicable payment terms and you authorize us to charge your chosen payment provider.
You may not: (i) modify Elena La Viajera Content for your own or a third-party’s monetary gain; (ii) interfere with the proper operation of or any security measure used by Elena La Viajera Content; (iii) use Elena La Viajera Content in a manner that suggests an unauthorized association
or is beyond the scope of the limited license granted to you; or (iv) otherwise violate these Terms.
USER CONTENT AND CONSENT
You acknowledge that you alone are entirely responsible for all information, reviews, photographs, video, messages, tags and/or other materials (collectively, “User Content”) that you upload, post, e-mail, transmit or otherwise make available reflecting our services.
You acknowledge that Elena La Viajera has no obligation to pre-screen User Content, although Elena La Viajera reserves the right in its sole discretion to pre-screen, refuse or remove any User Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of User Content.
You grant Elena La Viajera a fully paid, royalty-free, perpetual, irrevocable, worldwide, non- exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display User Content (in whole or in part) for any purpose, commencing on the date you made such User Content available, including promoting and marketing Elena La Viajera. You warrant that the holder of any worldwide intellectual property right, including moral rights, in the User Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.
You shall not (and shall not permit any third party) either (a) take any action or (b) make available any User Content that, in Elena La Viajera’s sole discretion: (i) infringes on any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; or (iii) involves commercial activities and/or sales, contests, giveaways or sweepstakes, without Elena La Viajera’s prior written consent.
LINKS TO THIRD PARTY WEBSITES
Our Website may only be used for lawful purposes. Illegal activities, including but not limited to tampering with the Website, misrepresenting the identity of a user, or conducting fraudulent activities on the Website are prohibited. You agree not to use any device, software or routine, or data to interfere or attempt to interfere with the proper working of the Website or any activity being conducted on the Website.
Any modification or amendment to these Terms and Conditions requires the sole consent of Elena La Viajera and may be signified by a notice posted to the Website that the terms have been updated or a new “last updated date” denoted at the top of these Terms. If there is a particular situation in which the Terms need to be modified for any one individual, the request will be considered for extraordinary circumstances only, and shall be emailed to email@example.com; in such an instance, the parties may modify or amend these Terms by way of email, so long as all parties provide proper acknowledgment of receipt of the email and indicate their acceptance of the revised terms by way of an electronic signature in the following form: “/s/ Party Name”. Email modifications shall not become binding until all parties have complied with these requirements.
Visiting http://www.elenalaviajera.com or sending emails to Elena La Viajera constitutes electronic communications. You consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and through or on the Website, satisfy any legal requirement that such communications be in writing.
By and in consideration for your use of our services, you irrevocably grant Elena La Viajera and its agents and representatives all rights to use, reproduce, display, exhibit, publish, edit, distribute, and/or produce derivative works based on your image, likeness, and voice as recorded by any camera and/or on any video, audio, and/or other media (collectively, “Likeness”) worldwide, in perpetuity, without compensation, payment, or other additional consideration of any kind, for any lawful purpose, including without limitation for the Elena La Viajera’s marketing and trade purposes. You agree that your Likeness may be used, reproduced, displayed, exhibited, published, edited, or distributed by Elena La Viajera at its sole discretion. You understand that your Likeness may be used in various publications, promotional or marketing materials, and/or social media, unrestricted by time or geographic area and consent to such uses. You further understand and grant permission to Elena La Viajera and its agents and representatives to electronically display any Likeness of you on the Internet or in other public
settings. You hereby waive the right to inspect or approve any and all materials in which your Likeness may appear. You further waive any right to royalties or other compensation arising or related to the use of your Likeness. This release applies to all photographic, audio, and/or video recordings that you create, relating to Elena La Viajera (or any third party). There is no time limit on the validity of this release nor is there any geographic limitation on where materials including your Likeness may be used, reproduced, displayed, exhibited, published, edited and/or distributed by or on behalf of Elena La Viajera.
You agree to defend, indemnify and hold harmless Elena La Viajera from and against any and all claims, liabilities, damages, losses, costs and expenses (including, reasonable attorneys’ fees and costs) arising out of or in connection with any of the following: (i) your breach or alleged breach of these Terms; (ii) your misuse of our service; (iii) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities; (iv) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property or privacy right; (v) your use of a third party service; or (vi) any misrepresentation made by you. Elena La Viajera reserves the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with Elena La Viajera’s defense of any claim. You will not in any event settle any claim without the prior written consent of Elena La Viajera.
This provision does not require you to indemnify us for any unconscionable commercial practice by us or for our fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with our service.
WAIVER OF INJUNCTION OR OTHER EQUITABLE RELIEF
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, SUBMISSIONS, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY ELENA LA VIAJERA OR A LICENSOR OF ELENA LA VIAJERA.
CONTROLLING LAW; JURISDICTION
The validity, construction and enforceability of these Terms and Conditions shall be governed in all respects by the laws of the State of Hawaii, and the parties expressly agree that any dispute
requiring resolution by a court shall be subject to the exclusive venue and jurisdiction of the state and federal courts serving Honolulu County, Hawaii.
Any dispute or claim arising under or in any way related to these Terms and Conditions, with the exception of recovery by Elena La Viajera of any unpaid amounts from you (which may be recovered by Elena La Viajera via collections, small claims court action, or any other legal remedy available to Elena La Viajera), shall be submitted to neutral, non-binding mediation prior to the commencement of arbitration or any other proceeding before a trier of fact. The parties to the dispute or claim agree to act in good faith to participate in mediation, and to identify a mutually acceptable mediator in Honolulu County, Hawaii. All parties to the mediation shall share equally in its cost. If the dispute or claim is resolved successfully through the mediation, the resolution will be documented by a written agreement executed by all parties. If the mediation does not successfully resolve the dispute or claim, the mediator shall provide written notice to the parties reflecting the same, and the parties may then proceed to seek an alternative form of resolution of the dispute or claim, as they wish. In the event that Elena La Viajera chooses or is forced to pursue any form of collections or legal action to enforce the Terms, you accept responsibility for all costs incurred in such dispute, including reasonable attorneys’ fees.
NO CLASS ACTIONS
You may only resolve disputes with us on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
You acknowledge and agree that these Terms, including waivers of liability, are intended to be as broad and inclusive as permitted by applicable law.
Elena La Viajera alone may assign, directly or indirectly, all or part of its rights or obligations under these Terms and Conditions without the prior written consent of the other party. Nothing in these Terms and Conditions, express or implied, will confer upon any person or entity not an authorized assignee to these Terms and Conditions, or the legal representatives of such person or entity, any rights, remedies, obligations, or liabilities of any nature or kind whatsoever under or by reason of these Terms and Conditions, except as expressly provided in herein.
If any provision of these Terms and Conditions shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of these Terms and Conditions is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed and enforced as so limited.
The failure or delay by Elena La Viajera to enforce or exercise any provisions of these Terms shall not constitute or be deemed a waiver of such provision or any other provisions within these Terms. Furthermore, any waiver or breach of any provision of these Terms shall not amount to a waiver of any other provision.
The provisions of these Terms which by their nature should survive termination of your use of our service, including sections on Intellectual Property, Disclaimer of Representations and Warranties, Limitations of Our Liability, Indemnification, and Waiver of Injunctive or Other Equitable Relief will survive.
RESERVATION OF RIGHTS
All rights not expressly granted to you are reserved by Elena La Viajera and its licensors and other third parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of the Elena La Viajera Content or service for any purpose is prohibited.
These Terms and Conditions constitute the entire agreement between the parties and supersedes all prior agreements whether oral or written concerning the subject matter of these Terms and Conditions.
By using this Website or purchasing products through this Website, you are agreeing to the Terms and Conditions.