GENERAL TERMS AND CONDITIONS TO ACCESS AND USE THE VIRTUALFITLIVE SERVICES ON THE MAUIJIM.COM WEBSITE

Welcome to Maui Jim’s VirtualFitLive Services offered on Maui Jim’s official website at www.mauijim.com. Please review the following terms and conditions that govern your use of Maui Jim’s Virtual Fit Live Services. Please note that the Virtual Fit Live Services provided are subject to these terms, and your use of the Virtual Fit Live Services constitutes your agreement to follow and be bound by these terms. These general contract terms (hereinafter the “General Terms and Conditions”) represent the terms and conditions that regulate the use, by Internet users (hereinafter the “Users” or “User”) who accept the following General Terms and Conditions, of the “MAUI JIM VIRTUAL FIT LIVE SERVICES” offered on the official website at www.mauijim.com by Maui Jim, Inc. and its parent companies, subsidiaries, associated companies as well as its agents and assignees (hereinafter “Maui Jim”), through the services provided by FittingBox, a French limited company with its headquarters located at Prologue La Pyreneenne, 31672 Labege Cedex, France, which is a supplier of virtual spaces autonomously managed by Users (hereinafter the “Service”).

ARTICLE 1: “VIRTUALFITLIVE SERVICES” on the Maui Jim Inc. website

1.1 The Service allows Users to virtually test Maui Jim products and accessories online. The Service is provided via a photograph or video the subject of which is the face of a male/female model that can be obtained on the aforesaid website or if a webcam is available through images supplied by the Users.

Maui Jim reserves the right (and not the obligation) to allow the Users to upload content and take “pictures of the screen” (hereinafter the “Content”) which can be posted, published, shared, circulated and communicated – at the User’s sole responsibility within ad hoc virtual spaces that are technically prepared to host them.

1.2 Content posted by Users in the aforesaid spaces is published online and, therefore, may be available and accessible for 30 days to User and any Internet users that User allows to access and see them. Maui Jim declines all responsibility with regard to such use and cancellation.

1.3 Maui Jim does not undertake any responsibility against the risks of deterioration and/or piracy involving the Content or any part thereof.

1.4 The right to use the Service is restricted to physical persons, is personal and cannot be transferred to third parties, either gratuitously or at a charge, both temporarily and definitively. Users are expressly prohibited from making any commercial use of the Service without the express prior written authorization of Maui Jim.

1.5 Maui Jim has the right to include advertisement messages inside the portal.

1.6 The Service allows Users to view the products contained on the Maui Jim Website without guaranteeing in any way whatsoever the similarity, identicalness and/or likelihood of the “virtual” products (“Virtual Products”) with the actual, physical products (“Real Products”). Maui Jim is therefore exempt from any liability concerning the features and the quality of the Real Products as well as the similarity of the Virtual Products to the Real Products and the level of Users’ satisfaction after a physical test of the Real Products.

1.7 In order to take advantage of the Service, Users will be required to download FittingBox’s FitLive software and the necessary plug-ins, and accept FittingBox’s FitLive system’s user license, verifying that the Users’ system it matches the specified technical requirements. Download and use of this Service and related software is at Users own risk as outlined in Articles 9 and 10.

ARTICLE 2: Acceptance

2.1 In order to take advantage of the Service referred to in Article 1.1; Users must provide their acceptance, subject to reading these General Terms and Conditions, by clicking on the button “I Accept”. If users do not “Accept” the General Terms and Conditions, such users will be prohibited from using the Service.

2.2 Users will not use the Service to circulate other people’s images and images of which Users have no full or absolute ownership.

ARTICLE 3: Guarantees and Liability

3.1 Maui Jim is not required to carry out preliminary verifications on the Content posted by Users, unless this is deemed necessary to comply with a judicial order or an order issued by another competent authority, as Maui Jim is not subject to any general supervisory obligation and, therefore, in no way can Maui Jim be held liable for the aforesaid Content, nor for any errors and/or omissions contained therein or for any direct or indirect damages caused to the Users and/or third parties from the use or non-use of the Service. Thus, Users shall be solely responsible for any Content autonomously posted, published and/or circulated online through the Service, in the name and/or on behalf of Users or any third parties, as well as for the accuracy and truthfulness of the same.

3.2 Maui Jim acts solely as provider of the virtual Service and therefore, without prejudice to any mandatory legal provisions, it cannot guarantee that the Content posted by Users through the Service is not inappropriate or offensive. Users waive all liability in this respect.

3.3 Users undertake to comply with all applicable laws and regulations in connection with the use of the Service and shall not use or permit the use of this Service or content for any unlawful or unauthorized purpose.

In particular, Users acknowledge that it is prohibited to (or allow other people to) post and/or publish in their Profiles and/or, more generally, in the web spaces made available to them by Maui Jim and/or FittingBox, Content:

• - that is offensive, insulting, defamatory, slanderous, pornographic, vulgar, obscene, pedo-pornographic, blasphemous and, in any case, that does not comply with public order and good conduct principles or that may in any way damage minors;
• - that is illegal by whatever title; violates applicable legal regulations – including, but not limited to, copyright or data protection law provisions – or intellectual or industrial property rights or any other third-party rights;
• - that is protected by copyright, without the express authorization of the third party owners of the intellectual property rights, as detailed in Article 3.5. that follows;
• - that causes disturbance to the public or to private individuals or gives offence or causes damage, either direct or indirect, to anyone or that encourages third parties to engage in illegal and/or criminal conduct leading to criminal or civil liability;
• - that contains viruses or other programs aimed at damaging or interfering with the proper operation of the Service, cause an unreasonable overload of activities of the technological infrastructures and servers of Maui Jim or FittingBox or that intercepts or misappropriates operating systems, data or personal information or violates or eliminates computerized or electronic correspondence to third parties;
• - that contains advertisements, promotional Content or any other kind of unrequested or unwanted solicitation.

3.4 Furthermore, Users acknowledge and accept that it is forbidden to post the following in the web spaces made available to them: i) any data, photographs, images, or other information prohibited by the laws of the relevant territory; ii) photographs/images of minors without obtaining prior parental authority and/or, in any case, iii) personal data of third parties (including images/photographs) without the necessary authorization to publish/circulate them online.

3.5 Any Content protected by copyright can be posted in the spaces made available to the Users as long as the Users have obtained the right to use such Content from the copyright owner of the copyright and of any other related right and therefore only with the permission of the owner of the rights and under the obligation of specifying the source and the existence of the permission. Thus, Users guarantee the origin and originality of the Content posted through the Service, in the aforesaid spaces and undertake not to copy, reproduce, process, alter, modify, transcribe, duplicate, communicate, distribute, exchange or otherwise disclose or make available to the public any Content protected by copyright without the express authorization of the owners of the related copyright. Any violation of the aforesaid provisions is punishable under the Copyright Laws and, in particular, that it is strictly forbidden to reproduce and make available to the public (even through file sharing) works protected by copyright without the authorization of the copyright owner, and sanctions are imposed for such violations, including criminal sanctions, as provided under Copyright Law.

3.6 Users give their consent to and expressly authorize Maui Jim to use automated communication means also without the use of operators (e-mails, pop-ups, texts, ordinary mail, banners), within the limits allowed by applicable law to send advertisement messages.

3.7 Maui Jim has the right to reproduce, store and circulate the Content Users have posted, as well as to remove the Content in Maui Jim’s complete and sole discretion.

ARTICLE 4: Netiquette rules and principles of conduct

Without prejudice to these General Terms, in taking advantage of the Service, Users are required to follow netiquette (literally “etiquette of the Net”) and any amendments and integrations to the same, i.e., a set of rules spontaneously developed within the Internet, which contain various provisions on the behavior that Internet users are required to comply with when using the Internet.

ARTICLE 5: Intellectual property rights

5.1 Users acknowledge that the Service, as well as all the software necessary to provide the same (hereinafter the “Software”), are the exclusive property of Maui Jim or FittingBox. Maui Jim or FittingBox retains all right, title, and interest in and to the Service and Software. Maui Jim and FittingBox therefore grant the Users a non-exclusive and non-transferable free license to access and use the Service and the Software required only for the uses authorized under these General Terms and Conditions.

Accordingly, neither the website content nor Software may be copied, distributed, republished, uploaded, posted, or transmitted in any way without the prior written consent of Maui Jim or FittingBox, except as authorized in Section 1.1. Users agree not to modify, provide in any way (with or without payment), distribute, disclose or create works wholly or partially based on the website content, Service or the Software. Additionally, Users cannot (nor allow third parties to) sub-license, rent, sell, distribute, circulate, provide, transform even only in part, de-codify, break down, disassemble, modify or translate the website content, Service, or Software, carry out reverse engineering and in any case reproduce, copy, use or provide the website content, Service, or Software, or parts of it, in any other manner except for that expressly permitted herein or permitted by mandatory law. Furthermore, Users are not authorized to create works deriving from or in any case attempting to uncover any source code, or develop products or software applications based on the Service or Software or that in any way make use of the Service or Software.

Users may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any of the content. Modification or use of the content or Service except as expressly provided in these General Terms and Conditions violates Maui Jim’s intellectual property rights. Neither title nor intellectual property rights are transferred to you by access to this site.

5.2 Users agree not to access the Service in any other manner except through the software interface distributed by Maui Jim. The acquisition of any Content or data through use of the Service is Users’ complete responsibility and that, therefore, Users are solely responsible for any damage to the system or loss of data caused by using the Service, even indirectly.

Use of the Service and of the relative Software is at Users’ own risk and peril and that the Service and Software are provided by Maui Jim and accepted by Users in their current condition (“as is” and “as available”). Maui Jim does not offer any guarantee that the Software meets the Users’ requirements or that the Software is uninterrupted, convenient, safe or error-free. Moreover, Maui Jim does not provide any guarantee on the results expected, hoped and obtained through the use of the Software.

5.3 Maui Jim expressly reserves the right to amend, even without notice, the Service or Software waiving any liability also in the event that the Users fail to use the Service or the Software for any reason or cause whatsoever.

5.4 Notice and Procedure for Making Claims of Copyright Infringement: Maui Jim does not permit copyright infringing activities and infringement of intellectual property rights on its website and will remove all content if properly notified that such content infringes another’s intellectual property rights. Maui Jim reserves the right to remove content without prior notice. Maui Jim reserves the right to terminate its agreement with any Users who repeatedly infringe third-party copyrights upon prompt notification to Maui Jim by the copyright owner or the copyright owner’s legal agent.

Without limiting the foregoing, if you believe that a copyrighted work has been copied and posted via the Maui Jim website in a way that constitutes copyright infringement, you shall provide Maui Jim with the following information:

• (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work;
• (b) an identification and location on the website of the copyrighted work that you claim has been infringed;
• (c) a written statement by you that you have a good faith belief that the disputed use is not authorized by the owner, its agent, or the law;
• (d) your name and contact information, such as telephone number or e-mail address;
• (e) a statement by you that the above information in your notice is accurate and, under penalty of perjury, which you are the copyright owner or authorized to act on the copyright owner’s behalf.

Contact information for Maui Jim’s Copyright Agent for notice of claims of copyright infringement is as follows:

Maui Jim, Inc.
Attn: Dave Siragusa
Re: DMCA/Copyright Legal Agent
One Aloha Lane
Peoria, IL 61615
dmcainquiries@mauijim.com

ARTICLE 6: Indemnity

Users undertake to indemnify and hold Maui Jim, its licensors, data providers, subsidiaries, affiliates, content providers, service providers, employees, agents, officers, directors, and contractors (the “Indemnified Parties”) harmless from any breach of these General Terms and Conditions by Users or arising from, related to, or connected with Users’ use of the Service and the Content, including any use of Content other than as expressly authorized in these General Terms and Conditions. Users expressly agree that the Indemnified Parties will have no liability in connection with any such breach or unauthorized use, and Users agree to indemnify any and all resulting loss, damages, judgments, awards, costs, expenses, and attorneys' fees of the Indemnified Parties in connection therewith. Users will also indemnify and hold the Indemnified Parties harmless from and against any claims brought by third parties arising out of Users’ use of the information accessed from this site.

ARTICLE 7: Disabling and cancellation of Content

7.1 It is understood that: i) in the event of violation by Users of the provisions and guarantees set forth under these General Terms and Conditions or, in any case, should Maui Jim become aware that Users have utilized the Service in a different manner than that authorized in these General Terms and Conditions and/or receive documented complaints and/or reports regarding the risk of said violation; or ii) should any complaint arise or any claim and/or demand be lodged by third parties against Maui Jim in relation to the Content; or iii) should Maui Jim deem, in its sole discretion, that the Content may be damaging to third parties or to Maui Jim; or iv) should the Service be used by Users for commercial purposes; or v) in the event of requests by the competent authorities, Maui Jim will have the right, in its sole discretion, save any other remedy set forth by law, to take any measures or initiatives Maui Jim deems appropriate and/or necessary, including the temporary removal or final cancellation of the Content, and/or the temporary or final disabling of any access to the Service. Maui Jim has the right to terminate this Contract and claim compensation for any damage suffered. It is understood that the Service cannot be used by any Users that have been either definitively or temporarily suspended.

7.2 Users acknowledge that in the event that Maui Jim, in carrying out the usual verifications on the operation of the Service, becomes aware, by chance, of alleged unlawful activities carried out by the Users (such as, but not limited to, the distribution of pedo-pornographic Content through the Service), Maui Jim is required to take immediate action, pursuant to applicable law, and report such violation to the competent authorities, providing, upon request by the latter, the information in its possession to enable identification of the Users, to allow said authorities to identify and prevent criminal activities.

7.3 Without any notice, the Content posted by Users can be deleted, on a random basis. Therefore, Users are invited – in their own interest – to save the Content posted via the Service on their own terminals or other technological support, without prejudice to the provisions and the prohibitions set forth these General Terms and Conditions. Under no circumstances will Maui Jim or FittingBox be considered responsible for the loss or deletion of any Content.

ARTICLE 8: Availability of the Services

8.1 Except to the extent required by law, Maui Jim does not guarantee the full and constant operation of the Service, nor does Maui Jim grant or recognize guarantees of any other kind, whether explicit or implicit, and provides no assurances regarding the quality, proper operation and appropriateness of the Service for any specific purpose or result, nor the publication or duration of the Content. Maui Jim may suspend and/or interrupt the Service (and/or the online publication and/or distribution of the Content) in the event of congestion and/or overloading of the system, as well as to allow any ordinary and extraordinary maintenance, without accepting, except to the extent required by the law, any responsibility, including cases where non-availability of the Service is caused by partial or total interruption of the access service provided by the telecommunications operator.

8.2 Maui Jim shall not be held responsible for delays, malfunctioning, suspension and/or interruption – with respect to the Users or parties directly or indirectly connected to the Users – in providing the Services, caused by: force majeure or fortuitous events; tampering or illegal actions by third parties on the services or equipment used by the Maui Jim or FittingBox; tampering or actions on the connection apparatus of the Users carried out by the latter or by unauthorized third parties; improper use of the Service by the Users; malfunctioning/improper configuration of the connection apparatus used by the Users.

ARTICLE 9: DISCLAIMER

YOUR USE OF THIS SITE IS AT YOUR OWN RISK. THE CONTENT IS PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED. MAUI JIM DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. MAUI JIM DOES NOT WARRANT THAT THE SERVICE, FUNCTIONS OR CONTENT CONTAINED IN THIS SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MAUI JIM DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING USE, OR THE RESULT OF USE, OF THE SERVICE OR CONTENT IN TERMS OF ACCURACY, RELIABILITY, OR OTHERWISE. THE SERVICE AND CONTENT MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS, AND MAUI JIM MAY MAKE CHANGES OR IMPROVEMENTS AT ANY TIME. YOU, AND NOT MAUI JIM ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION IN THE EVENT OF ANY LOSS OR DAMAGE ARISING FROM THE USE OF THIS SITE, SERVICE, OR ITS CONTENT. MAUI JIM MAKES NO WARRANTIES THAT YOUR USE OF THE CONTENT WILL NOT INFRINGE THE RIGHTS OF OTHERS AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH CONTENT.

ARTICLE 10: LIMITATION ON LIABILITY

MAUI JIM AND ITS LICENSORS, DATA PROVIDERS, SUBSIDIARIES, AFFILIATES, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, ACTUAL, EXEMPLARY, OR OTHER DAMAGES INCLUDING LOSS OF REVENUE OR INCOME, PAIN AND SUFFERING, EMOTIONAL DISTRESS, OR SIMILAR DAMAGES, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION EVEN IF MAUI JIM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM, CUMULATIVE, AND AGGREGATE LIABILITY OF MAUI JIM AND ITS LICENSORS, DATA PROVIDERS, SUBSIDIARIES, AFFILIATES, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS FOR ALL CLAIMS AND ACTIONS HEREUNDER SHALL NOT EXCEED THE GREATER OF $100 OR THE AMOUNT OF FEES YOU HAVE PAID TO MAUI JIM FOR THE APPLICABLE CONTENT OR SERVICE OUT OF WHICH LIABILITY AROSE AND, AT THE TIME OF PRESENTATION OF THE FIRST CLAIM OR ACTION, THE THEN-MOST RECENT CALENDAR MONTH. THESE LIMITATIONS ON LIABILITY SHALL APPLY REGARDLESS OF WHETHER ANY PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE FAILED OF THEIR ESSENTIAL PURPOSE. NO ACTION MAY BE BROUGHT BY YOU IN CONNECTION WITH THIS AGREEMENT MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION AROSE.

ARTICLE 11: Change in Services

The use of the Service requires acceptance of these General Terms and Conditions by Users. Users are aware that these General Terms and Conditions can be amended at any time by simply publishing the new version online. By using the Service, Users undertake to be updated on and become aware of the terms and to be informed of any amendments made. The new terms and conditions shall be automatically effective as soon as they are published on the website. Should Users disagree with the new terms, Users may decide that Users no longer wish to take advantage of the Service without having any right or claim deriving from failure to make past use of the Service. Under no circumstances will Maui Jim or FittingBox be liable if, following the aforesaid amendments, the Content posted by the Users is deleted.

ARTICLE 12: Duration and withdrawal

12.1 The Service is provided at no charge, for an indefinite period of time and does not require registration. The above is without prejudice to any additional provisions contained in the disclaimer regarding the authorization and waiver of liability for the use of images by Users.

12.2 In the event of interruption, for any reason, of the use of the Service and of the related Software, the Users will continue to be liable for the Content posted.

ARTICLE 13: Communications

Users can contact Maui Jim directly to obtain clarifications on the Service by writing to: Dave Siragusa at dsiragusa@mauijim.com. Users can, nevertheless, contact Maui Jim also at the following address: Maui Jim, Inc., One Aloha Lane, Peoria IL, 61615.

ARTICLE 14: Express termination clause

In addition to the provisions governing the suspension or interruption of the relationship arising from this contract, Maui Jim also reserves the right to immediately terminate the Service in the event of breach of even just one of the obligations contained in this contract. The above does not prejudice any further claims for damages suffered.

ARTICLE 15: Court of jurisdiction and Applicable law

These General Terms and Conditions will be governed and interpreted pursuant to the laws of Illinois, United States of America, notwithstanding any principles of conflicts of law. Users specifically consent to personal jurisdiction in Illinois in connection with any dispute between User and Maui Jim arising out of these General Terms and Conditions or pertaining to the subject matter hereof. The parties to these General Terms and Conditions each agree that the exclusive venue for any dispute between the parties arising out of these General Terms and Conditions or pertaining to the subject matter of these General Terms and Conditions will be in the state and federal courts in Chicago, Illinois. If any part of these General Terms and Conditions is held to be invalid, illegal, void or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.

These General Terms and Conditions constitute the entire agreement among the parties relating to this subject matter. Notwithstanding the foregoing, any additional terms and conditions on this site will govern the items to which they pertain. Maui Jim may revise these General Terms and Conditions at any time by updating this posting.

ARTICLE 16: Reference

Any matter that is not expressly dealt with in this Contract shall be governed by applicable law.