Terms of Service
Posted: May 27, 2014
Effective: May 27, 2014
Thanks for using SimpleCharters! Here we describe our general Terms of Service (these “Terms”).
PLEASE READ THESE TERMS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES.
If you do not agree to these Terms, you have no right to obtain information from or otherwise continue using our Site. Failure to use our Site in accordance with these Terms may subject you to civil and criminal penalties. We urge all users to be responsible about their use of our Site and any transactions entered into as a result of either listing or chartering an aircraft. We do not own or manage any aircraft listed on our Site and we are not a party to any agreement between users of our Site and owners or operators of such aircraft.
OUR SITE COMPRISES AN ONLINE PLATFORM THROUGH WHICH OPERATORS (DEFINED BELOW) MAY CREATE LISTINGS (DEFINED BELOW) FOR CHARTERS (DEFINED BELOW) AND CUSTOMERS (DEFINED BELOW) MAY LEARN ABOUT AND BOOK CHARTERS. YOU UNDERSTAND AND AGREE THAT SIMPLECHARTERS IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN OPERATORS AND CUSTOMERS, NOR IS SIMPLECHARTERS A BROKER, AGENT OR INSURER. SIMPLECHARTERS HAS NO CONTROL OVER THE CONDUCT OF OPERATORS, CUSTOMERS AND OTHER USERS OF OUR SITE OR ANY CHARTERS, AND DISCLAIMS ALL LIABILITY IN THIS REGARD.
“Collective Content” means Member Content and SimpleCharters Content.
“Content” means text, graphics, images, music, software, audio, video, information or other materials.
“Customer” means a Member who requests a charter of an aircraft via our Site, or a Member who charters an aircraft via our Site.
“Listing” means an aircraft that is listed by an Operator as available for charter via our Site.
“Member” means a person who completes SimpleCharters’ account registration process, including, but not limited to Operators and Customers, as described under “Profile Registration” below.
“Member Content” means all Content that a Member posts, uploads, publishes, submits or transmits to be made available through our Site.
“Operator” means an air carrier certificated by the Federal Aviation Administration and registered with the U.S. Department of Transportation or foreign equivalent.
“SimpleCharters Content” means all Content that SimpleCharters makes available through our Site, including any Content licensed from a third party, but excluding Member Content.
“Tax” or “Taxes” mean any sales taxes, value added taxes (VAT), goods and services taxes (GST) and other similar municipal, state and federal indirect or other withholding and personal or corporate income taxes.
Certain areas of our Site (and your access to or use of certain aspects of Collective Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of our Site or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of our Site or Collective Content.
SimpleCharters reserves the right, at its sole discretion, to modify our Site or to modify these Terms, including the Service Fees (defined below), at any time and without prior notice. If we modify these Terms, we will post the modification on our Site or provide you with notice of the modification. We will also update the “Effective” date at the top of these Terms. By continuing to access or use our Site after we have posted a modification on our Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using our Site.
Our Site can be used to facilitate the listing and booking of aircraft charters (“Charters”). Such Charters are included in Listings on our Site by Operators. If you wish to book a Charter or create a Listing, you must first register to create a Profile (defined below).
As stated above, SimpleCharters makes available a platform or marketplace with related technology for Customers and Operators to meet online and arrange for bookings of Charters. SimpleCharters is not an owner or operator of aircraft or any related properties or amenities. SimpleCharters’ responsibilities are limited to facilitating the availability of our Site.
SIMPLECHARTERS CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY LISTINGS AND THE CONDITION, LEGALITY OR SUITABILITY OF ANY CHARTERS. SIMPLECHARTERS IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS AND CHARTERS. ACCORDINGLY, ANY BOOKINGS WILL BE MADE AT THE CUSTOMER’S OWN RISK.
In order to access certain features of our Site and to book a Charter or create a Listing, you must register to create an account and profile (your “Profile”) and become a Member. You can do this directly via our Site.
We will create your Profile page for your use of our Site based upon the personal information you provide to us. You may not have more than one (1) active Profile. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. SimpleCharters reserves the right to suspend or terminate your Profile and your access to our Site if you create more than one (1) Profile or if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Profile, whether or not you have authorized such activities or actions. You will immediately notify SimpleCharters of any unauthorized use of your Profile.
As a Member, you may create Listings. To this end, you will be asked a variety of questions about the Charter to be listed, including, but not limited to, the type, model, age, features and availability of the aircraft which is the subject of the Charter and pricing and related rules and financial terms. Listings will be made publicly available via our Site. Other Members will be able to book your Charter via our Site based upon the information provided in your Listing. You understand and agree that once a Customer requests a booking of your Charter, the price for such booking may not be altered.
You acknowledge and agree that you are responsible for any and all Listings you post. Accordingly, you represent and warrant that any Listing you post and the booking of, or use of, a Charter in a Listing you post (a) will not breach any agreements you have entered into with any third parties and (b) will (i) be in compliance with all applicable laws, Tax requirements, and rules and regulations that may apply to any Charter included in a Listing you post, including, but not limited to, any and all applicable international, federal and state aviation-related laws, rules and regulations and (ii) not conflict with the rights of third parties. Please note that SimpleCharters assumes no responsibility for an Operator’s compliance with any applicable laws, rules and regulations. SimpleCharters reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason, including Listings that SimpleCharters, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to our Site.
You understand and agree that SimpleCharters does not act as an insurer or as a contracting agent for you as an Operator. If a Customer requests a booking of your Charter and utilizes your Charter, any agreement you enter into with such Customer is between you and the Customer and SimpleCharters is not a party thereto.
When you create a Listing, you may also choose to include certain requirements which must be met by the Members who are eligible to request a booking of your Charter, including, but not limited to, requiring Members to have a profile picture or verified phone number, in order to book your Charter. Any Member wishing to book a Charter included in Listings with such requirements must meet such requirements. More information on how to set such requirements is available on our Site.
If you are an Operator, SimpleCharters makes certain tools available to you to help you to make informed decisions about which Members you choose to confirm for booking for your Charter. You acknowledge and agree that, as an Operator, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who utilize your aircraft or are otherwise present on or around the aircraft or on the Charter, excluding the Customer (and the individuals the Customer invites to the Charter, if applicable.)
SimpleCharters recommends that Operators obtain appropriate insurance for their aircraft and Charter. Please review any insurance policy that you may have for your aircraft and Charter carefully, and in particular please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Customers (and the individuals the Customer invites to the Charter, if applicable) while utilizing your Charter.
SimpleCharters does not endorse any Members or any Charters. In addition, although these Terms require Members to provide accurate information, we do not attempt to confirm, and do not confirm, any Member’s purported identity. You are responsible for determining the identity and suitability of others who you contact or who contact you via our Site.
By using our Site, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Members or other third parties will be limited to a claim against the particular Members or other third parties who caused you harm and you agree not to attempt to impose liability on, or seek any legal remedy from SimpleCharters with respect to such actions or omissions. Accordingly, we encourage you to communicate directly with other Members on our Site regarding any bookings or Listings made by you.
When a booking is requested via our Site, we will share with you (i) the first and last name of the Customer who has requested the booking, and (ii) a link to the Customer’s Profile profile page so that you can view such information before confirming or rejecting the booking. When you confirm a booking requested by a Customer, SimpleCharters will send you an email or text message confirming such booking, depending on the selections you make via our Site.
The fees displayed in each Listing are comprised of the Charter Fees (defined below) and the Service Fees (defined below.) Where applicable, Taxes may be charged in addition to the Charter Fees and Service Fees. The Charter Fees, the Service Fees and applicable Taxes are collectively referred to in these Terms as the “Total Fees”. The amounts due and payable by a Customer solely relating to an Operator’s Charter are the “Charter Fees”. Please note that it is the Operator and not SimpleCharters that determines the Charter Fees. The Charter Fees may include miscellaneous fees, at the Operator’s discretion.
SimpleCharters charges a fee to Customers based upon a percentage of applicable Charter Fees which are the “Service Fees”. The Service Fees are added to the Charter Fees to calculate the Total Fees (which will also include applicable Taxes) displayed in the applicable Listing. SimpleCharters will collect the Service Fees at the time of booking confirmation. The Customer must initiate payment of the Charter Fees and Service Fees to the Operator and SimpleCharters, as applicable, within 24 hours of when the Customer books the applicable Charter.
Payment processing services for Operators on SimpleCharters are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these terms or continuing to operate as an operator on SimpleCharters, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of SimpleCharters enabling payment processing services through Stripe, you agree to provide SimpleCharters accurate and complete information about you and your business, and you authorize SimpleCharters to share it and transaction information related to your use of the payment processing services provided by Stripe.
Operators may choose to include security deposits in their Listings (“Security Deposits”). Each Listing will describe whether a Security Deposit is required for the applicable Charter. SimpleCharters will also use its commercially reasonable efforts to address claims related to Security Deposits, but SimpleCharters is not responsible for administering or accepting any claims by Operators related to Security Deposits, and disclaims any and all liability in this regard.
In consideration for providing our Site, SimpleCharters collects service fees from Customers (“Service Fees”). Service Fees are, as noted above, included in the Total Fees and are paid by Customers at the time of booking a Charter.
In some instances, Customers may be required to make recurring, incremental payments toward the Total Fees owed for a confirmed booking before utilizing the Charter or to cover miscellaneous trip expenses such as catering or de-icing charges (collectively, “Recurring Payments”). More information on Recurring Payments will be made available via our Site, if applicable. If Recurring Payments apply to your payment obligations for Total Fees owed for a confirmed booking, you authorize the Operator to collect such fees in the increments and in the manner associated with the applicable Recurring Payments, identified on our Site.
Payments to SimpleCharters for Listings (“Subscriptions”) must be made to us in U.S. Dollars paid either by major credit or debit card or other acceptable method of recurring electronic funds transfer.
All Subscriptions shall automatically renew at the expiration of the then-current term for an additional term of the same duration and at the then-current non-promotional Subscription rate. The automatic renewal feature allows your service to remain uninterrupted at the expiration of your then-current term. If you wish to turn off auto-renewal, you must log on to your account and manually turn off auto-renewal at any time prior to expiration of the then-current term. In such a case, your Subscription will remain active through the expiration of your then-current Subscription term; however, your Subscription will not be automatically renewed upon the expiration of your then current term. If your Subscription does not auto-renew or expires at the end of your then current Subscription term and you desire to renew your Subscription, you will be required to pay the then-current non-promotional Subscription rate to renew your Subscription or to activate a new Subscription.
If you do not turn off auto-renewal and you continue to use our Subscription service, you re-affirm and authorize us to charge your credit card at the end of each Subscription term for an additional term of the same duration as the initial term and at the then-current non-promotional Subscription rate for the same product or service.
If the product or service that you last purchased has changed in any way or is no longer offered, you agree and authorize us to charge your credit card at the renewal of your Subscription term for a product or service that is the most similar, as determined by us, to the product or service that you previously purchased, even if the price of such product or service is not the same of the prior product or service that you purchased. You agree to be responsible for any such charges, and we reserve the right to obtain payment directly from you if necessary.
If you wish to avoid billing of Subscription fees for the renewal term to your credit card, you must turn off auto-renewal for your Subscription before it renews.
All Subscription listings are sold to run the full term that is chosen by the member. The term starts on the date that the member submits the full or initial (as applicable) payment and expires on the last date of the term chosen by the member. For example, for an annual subscription term, if the member submits payment for the subscription on July 1st, the subscription would expire on June 30 of the following year.
Generally, no refunds are available unless a member qualifies for a refund under any guarantee program we may have in effect. If you believe you qualify for a refund under a guarantee we are offering, please contact us.
In the event you purchase a Subscription for a Listing but do not complete the creation of the Listing or the Listing does not get posted after purchase for any other reason, refund requests will be considered only during the first three (3) months following the purchase date.
If you renew your Subscription, or if your Subscription automatically renews under its terms of your Subscription, your Listing will remain online for the entire Subscription period without refund. If you sell your aircraft and no longer wish for the Listing to remain online, please contact us and we can remove the Listing; however, no refund will be owed.
If, in our sole discretion, any Member submits unsuitable material to our Site or into our database, misuses our Site or our online system or is in material breach of these Terms, we reserve the right to terminate such Member’s Subscription(s) immediately without refund. In addition, if we become aware of or receive a complaint or a series of complaints from any user or other third party regarding a Member’s Listing or Charter practices that, in our sole discretion, warrants the immediate removal of such Member’s Listing from our Site, then we may immediately terminate such Member’s Listing(s) or Subscription(s) without notice to the Member and without refund. If any Member is in breach of these Terms or its obligations to us or any of our third party providers, then we may terminate such Member’s Ssubscription(s) immediately without notice to the Member and without refund.
All refunds are further subject to our Customer Refund Policy.
Some Operators may pledge to donate a portion of the funds they receive from confirmed bookings made via our Site to a particular cause or charity. We do not control, and will not take any responsibility or liability for, whether the Operator does in fact make the donation he or she pledged to make.
IRS regulations, regarding federal tax reporting requirements, may require that SimpleCharters collect IRS Form W-9 from Customers and Operators under certain circumstances. You understand and agree that you are solely responsible for determining your applicable Tax reporting requirements in consultation with your tax advisors. SimpleCharters cannot and does not offer Tax-related advice to any Members of our Site. Additionally, please note that each Operator is responsible for determining local indirect Taxes and for including any applicable Taxes to be collected or obligations relating to applicable Taxes in Listings. Where applicable, or based upon request from an Operator, SimpleCharters may issue a valid VAT invoice to such Operator.
As part of our Site, SimpleCharters provides a feature through which Members may view Total Fees for various Listings in foreign currencies. You understand and agree that these views of Total Fees are for informational purposes only and are not the official Total Fees for the Listings. If you (as a Customer) request a booking, you will be notified of the currency in which you will be charged together with the corresponding amount of Total Fees, if your booking is confirmed by an Operator. The currency in which you will be charged will be determined by SimpleCharters based on the payment method you select and the location of the Charter in the Listing you are booking. If the currency in which you will be charged is different from the currency chosen by the Operator to receive payment, SimpleCharters will be responsible for the required currency conversion processing, including the costs thereof, which will be calculated based on the most current applicable foreign exchange rate that SimpleCharters has uploaded to our Site as of the date and time that your booking is confirmed (the “Applicable Exchange Rate”). You acknowledge that the Applicable Exchange Rate used for currency conversion processing may not be identical to the applicable market rate in effect at the specific time such processing occurs because: (i) although SimpleCharters updates the Applicable Exchange Rate on a regular basis, it does not update such rate on a real-time basis; and (ii) the Applicable Exchange Rate may include an incremental cost or margin that is not included in the applicable market rate.
You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of our Site and Content. In connection with your use of our Site, you may not and you agree that you will not:
SimpleCharters will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. SimpleCharters may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that SimpleCharters has no obligation to monitor your access to or use of our Site or Collective Content or to review or edit any Member Content, but has the right to do so for the purpose of operating our Site, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. SimpleCharters reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that SimpleCharters, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to our Site.
Our Site and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that our Site and Collective Content, including all associated intellectual property rights is the exclusive property of SimpleCharters and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying our Site or Collective Content.
Subject to your compliance with the terms and conditions of these Terms, SimpleCharters grants you a limited, non-exclusive, non-transferable license, to (i) access and view any SimpleCharters Content solely for your personal and non-commercial purposes and (ii) access and view any Member Content to which you are permitted access, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit our Site, or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by SimpleCharters or its licensors, except for the licenses and rights expressly granted in these Terms.
We may, in our sole discretion, permit Members to post, upload, publish, submit or transmit Member Content. By making available any Member Content on or through our Site, you hereby grant to SimpleCharters a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content on, through, or by means of our Site. SimpleCharters does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through our Site. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through our Site or you have all rights, licenses, consents and releases that are necessary to grant to SimpleCharters the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or SimpleCharters’ use of the Member Content (or any portion thereof) on, through or by means of our Site and our Site will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You grant SimpleCharters the right to use your name, logo, and a description of your use case to refer to you on SimpleCharters’s website, earnings release and calls, marketing or promotional materials, subject to your standard trademark usage guidelines that you provide to us from time-to-time.
All trademarks, service marks, logos, trade names and any other proprietary designations of SimpleCharters used herein are trademarks or registered trademarks of SimpleCharters. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to our Site (“Feedback”). You may submit Feedback by emailing us at [email protected] You acknowledge and agree that all Feedback will be the sole and exclusive property of SimpleCharters and you hereby irrevocably assign to SimpleCharters and agree to irrevocably assign to SimpleCharters all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At SimpleCharters’ request and expense, you will execute documents and take such further acts as SimpleCharters may reasonably request to assist SimpleCharters to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time: (a) terminate these Terms or your access to our Site, and (b) deactivate or cancel your Profile. In the event SimpleCharters terminates these Terms, or your access to our Site or deactivates or cancels your Profile you will remain liable for all amounts due hereunder. You may cancel your Profile at any time by sending an email to [email protected] Please note that if your Profile is cancelled, we do not have an obligation to delete or return to you any Content you have posted to our Site, including, but not limited to, any reviews or Feedback.
IF YOU CHOOSE TO USE OUR SITE AND PARTICIPATE IN THE TRAVEL CREDITS, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT SIMPLECHARTERS DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS ON ANY MEMBER, INCLUDING, BUT NOT LIMITED TO, CUSTOMERS AND OPERATORS, BUT MAY CONDUCT SUCH BACKGROUND CHECKS IN ITS SOLE DISCRETION. OUR SITE AND COLLECTIVE CONTENT IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, SIMPLECHARTERS EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. SIMPLECHARTERS MAKES NO WARRANTY THAT OUR SITE, OR COLLECTIVE CONTENT, INCLUDING, BUT NOT LIMITED TO, THE LISTINGS OR ANY CHARTERS WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. SIMPLECHARTERS MAKES NO WARRANTY REGARDING THE QUALITY OF ANY LISTINGS, CHARTERS, OUR SITE OR COLLECTIVE CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH OUR SITE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SIMPLECHARTERS OR THROUGH OUR SITE OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF OUR SITE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF OUR SITE, INCLUDING, BUT NOT LIMITED TO, ANY OPERATORS OR CUSTOMERS. YOU UNDERSTAND THAT SIMPLECHARTERS DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF OUR SITE OR TO REVIEW OR VISIT ANY CHARTERS. SIMPLECHARTERS MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF OUR SITE OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF OUR SITE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF OUR SITE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF OUR SITE, INCLUDING, BUT NOT LIMITED TO, CUSTOMERS AND OPERATORS, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON REGARDLESS OF WHETHER SUCH MEETINGS ARE ORGANIZED BY SIMPLECHARTERS.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF OUR SITE AND COLLECTIVE CONTENT, YOUR LISTING OR BOOKING OF ANY CHARTERS VIA OUR SITE, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF SIMPLECHARTERS WHETHER IN PERSON OR ONLINE REMAINS WITH YOU. NEITHER SIMPLECHARTERS NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING OUR SITE OR COLLECTIVE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE OUR SITE OR COLLECTIVE CONTENT, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF OUR SITE OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF OUR SITE, OR FROM YOUR LISTING OR BOOKING OF ANY CHARTERVIA OUR SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SIMPLECHARTERS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL SIMPLECHARTERS’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF OUR SITE INCLUDING, BUT NOT LIMITED TO, FROM YOUR LISTING OR BOOKING OF ANY CHARTER VIA OUR SITE, OR FROM THE USE OF OR INABILITY TO USE OUR SITE, OR COLLECTIVE CONTENT IN CONNECTION WITH ANY CHARTER OR INTERACTIONS WITH ANY OTHER MEMBERS, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR BOOKINGS VIA OUR SITE AS A CUSTOMER IN THE SIX (6) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR, IF YOU ARE AN OPERATOR, THE AMOUNTS PAID BY CUSTOMERS TO YOU IN THE SIX (6) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED DOLLARS ($100), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SIMPLECHARTERS AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to release, defend, indemnify, and hold SimpleCharters and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of our Site or Collective Content or your violation of these Terms; (b) your Member Content; and (c) your (i) interaction with any Member, (ii) booking of a Charter, (iii) creation of a Listing or (iv) the use, condition or rental of a Charter by you, including, but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of a rental, booking or use of a Charter.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by SimpleCharters (i) via email (in each case to the address that you provide) or (ii) by posting to our Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
These Terms will be interpreted in accordance with the laws of the State of New Hampshire and the United States of America, without regard to any conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a state or federal court in the State of New Hampshire for any actions for which the parties retain the right to seekinjunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution provision below.
You and SimpleCharters agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of our Site (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. You acknowledge and agree that you and SimpleCharters are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and SimpleCharters otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at http://www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of New Hampshire and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and SimpleCharters otherwise agree, the arbitration will be conducted in Rockingham County, New Hampshire. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and SimpleCharters submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration, you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. SimpleCharters will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, SimpleCharters will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provisions of the “Modification” section above, if SimpleCharters changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to [email protected]) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of SimpleCharters’ email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and SimpleCharters in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
The failure of SimpleCharters to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of SimpleCharters. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
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Have questions about SimpleCharters or these Terms? Contact us at [email protected]