Terms of service

TERMS OF SERVICE

Effective Date: Oct 20, 2019

 

  1. ACCEPTANCE

These Terms of Service (the “Terms”) govern your use of www.birdingoutfitters.com (the “Platform”). These Terms have a force of a legally binding agreement, even if you are simply browsing without intention to contact us or register an account. PLEASE READ THESE TERMS CAREFULLY. THEY CONTAIN PROVISIONS RELATED TO ASSUMPTION OF RISK AND RELEASE OF LIABILITY TO THE MAXIMUM EXTENT ALLOWED BY LAW. The term "us," "we" or "our" refers to the owner and operator of this Platform, Birding Outfitters, LLC, a Colorado limited liability company. The term "you" refers to the viewer of the Platform. Privacy Policy [https://www.birdingoutfitters.com/page/privacy-policy/] is another important document that you should familiarize yourself with because it describes our practices with respect to your personal information. You cannot visit the Platform if you do not agree to these Terms or the Privacy Policy. Sometimes we modify these Terms. We don’t notify users about every change to the Terms but you can see the date of the last update at the top of this page. If you still wish to visit the Platform after said date, that constitutes your agreement to the updates.

 

  1. ASSUMPTION OF RISK AND WAIVER OF LIABILITY
  1. Platform Description. Our Platform’s role is limited to matching birdwatchers with guides and processing payments for tours. Birding Outfitters, LLC is neither a tour operator nor a travel agent. We have no control over users’ conduct and it is entirely up to them how to interact, or refuse interaction, with each other. WE ARE NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN GUIDES AND BIRDWATCHERS. WE SHALL NOT BE HELD LIABLE FOR TOURS, USERS’ TRANSACTIONS, INTERACTIONS AND INFORMATION.  We are not responsible for any delays, changes, or omissions from any tour description. We are not liable for the consequences of you disclosing your personal information to other users. Once a guide is booked for for certain dates, the guide is unavailable to be booked on those dates by anyone else.
  2. Personal Safety and Assumption of Risks. You acknowledge that birdwatching tours include inherent risks related to transportation, trekking, wildlife encounters, weather and equipment.  By participating in tours, you expressly agree to assume all associated risks, including, without limitation, the risks of injury, death or property damage. It is your sole responsibility to take adequate safety precautions when selecting a guide and when on a tour. Do not engage in activities that exceed your skill level. Always use proper safety equipment. You must advise your guide of any condition that may affect the safety of the tour. For example, physical or mental handicaps, pregnancy, impairment, influence of prescription drugs, etc. you cannot participate in any tours while under the influence of illegal drugs or alcohol. You cannot bring illegal drugs or any other illegal items on the tour.
  3. Relationship of the Parties. Users (birdwatchers and guides) and us are in an independent contractor relationship with respect to each other. That means that there is no partnership, joint venture, employer/employee or any similar arrangement between us, guides and/or birdwatchers. We do not direct or control guides generally or in their performance. You can decide whether to accept, decline or ignore a service offer/request made via the Platform. We do not endorse any particular guide and they do not endorse us. We do not guarantee that their services will meet your expectations.
  4. Third Parties. The Platform may contain references to third party websites and rely on third party services for support (e.g., Stripe or Payoneer). We shall not be liable for any third party venues and cannot guarantee their performance. We do not monitor all content submitted to the Platform. We shall not be liable for user submissions or any third party content on the Platform.

 

  1. BOOKINGS

Birdwatchers can book listed tours through the Platform. Prior to the booking, you can make requests and ask guides for more details related to their tours via our private messaging system.  Guides must either confirm or reject a booking within 24 hours. If they fail to do either by that deadline, the booking request will be automatically canceled. Guides set the prices, from which we then deduct our service fee. Birdwatchers pay the full cost of the tour at booking, the Platform holds the money until the tour is completed. Then the money minus our service fee is paid to the guide via Stripe or Payoneer. It is the guides’ responsibility to pay any income taxes to which collected payments may be subject.

 

  1. INDEMNIFICATION

You agree to defend, indemnify and hold harmless our company, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your participation in the tours; (ii) your violation of any provision of these Terms; and (iii) your violation of anyone’s rights.

 

  1. INTELLECTUAL PROPERTY
  1. Our Intellectual Property. We and our content suppliers own all intellectual property rights in our Platform contents, logos, trademarks (whether registered or unregistered) and data. Our IP rights are protected by U.S. law and international IP conventions. By using our Platform you do not acquire any of our IP rights. Nevertheless, you can view and print out this Platform’s content for personal use. We reserve all rights that are not expressly granted under these Terms or other written agreements between you and us.
  2. Your Submissions. If you list tours, write reviews, post photos, or upload any other content to the public areas of our Platform, you state that: (i) you have all necessary rights to that content, and (ii) we can display, transmit, modify and distribute this content without compensation to you. We can use and implement any feedback that you voluntarily provide without compensation.
  3. Copyright Infringement. We take copyright infringement seriously. Report it to us if you see it on our Platform and we will investigate.

 

  1. USERS’ OBLIGATIONS

By visiting this Platform, you represent and agree that:

  1. You are 18 years of age or older. You have a full capacity to enter into a legally binding agreement, such as these Terms.
  2. You will pay as agreed using only payment methods which you are authorized to use. You will not use false identity.
  3. You will not transact outside of our Platform in order to avoid paying us our fee.
  4. You will not let others use your account, except as may be explicitly authorized by us. Everything that happens under your account is your responsibility. Registering duplicate accounts is not allowed.
  5. If you make a submission, it shall be truthful and not misleading. We can terminate any account for writing untruthful reviews, comments or other content. We reserve the right to edit, reject or erase anything submitted to us without prior notice. You will not send spam, anything defamatory, vulgar, racist, abusive or hateful.
  6. You will ask for our permission before copying anything from our Platform for republication.
  7. You will not use our Platform for anything illegal.
  8. We reserve the right to terminate any account using our sole reasonable discretion and without notice or liability.
  9. Bots, crawlers, indexers, web spiders, harvesters or any similar automatic processes are not allowed on our Platform.
  10. You will not impede the proper functioning of the Platform.

 

  1. BREACH OF THESE TERMS

If any user violates these Terms or any law, we can, without limitation: (i) ban that user from the Platform; (ii) disclose the user’s identity to authorities and assist in investigations; (iii) delete or moderate the user’s content; (iv) take any other action available under law.

 

  1. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY
  1. EVERYTHING WE PROVIDE ON THIS PLATFORM IS ON AN “AS IS” BASIS, TO BE RELIED ON AT YOUR OWN RISK. WE ARE NOT RESPONSIBLE FOR THE OUTCOMES OF THE TOURS. WE DISCLAIM LIABILITY FOR INJURIES, DEATH AND PROPERTY DAMAGE. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, SAFETY, FREEDOM FROM DEFECTS OR THAT DEFECTS WILL BE CORRECTED, UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE PERFORMANCE. IN NO EVENT OUR AGGREGATE LIABILITY SHALL EXCEED THE GREATER OF (A) OUR COMMISSION RECEIVED OR (B) $100.
  2. WE ARE NOT LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS AND PROPERTY DAMAGE, EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL WE BE HELD LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND OUR REASONABLE CONTROL. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF CERTAIN WARRANTIES, SO THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.

 

  1. REFUNDS

The Platform is responsible for issuing the refunds. They are triggered by cancelation either by guide or client. The Platform will issue a full refund if the reservation is canceled by the guide.  If the reservation is canceled by the client, a cancellation fee of 3% of the total tour cost is deducted from the refund amount.  The Platform will issue a full refund, minus the cancellation fee, if the reservation is canceled by client (i) within 24 hours of booking and more than 2 days prior to start of the tour, and (ii) the reservation is canceled by the client before the guide confirms the booking request. Outside of that timeframe, it is up to the tour guides to decide which of the following three cancellation policies to choose for their tours.

  1. Flexible: Full refund if canceled 14 days or more prior to the day of the tour. 50% refund if canceled between 7 and 13 days prior to the day of the tour. 25% refund if canceled between 6 days and 24 hours prior to the day of the tour. Non-refundable if canceled within 24 hours prior to the day of the tour.  A cancellation fee of 3% of the total tour cost is deducted from the refund amount.
  2. Moderate: Full refund if canceled 30 days or more prior to the day of the tour. 50% refund if canceled between 14 and 29 days prior to the day of the tour. 25% refund if canceled between 4 and 13 days prior to the day of the tour. Non-refundable if canceled within 3 days prior to the day of the tour.  A cancellation fee of 3% of the total tour cost is deducted from the refund amount.
  3. Strict: Full refund if canceled 60 days or more prior to the day of the tour. 50% refund if canceled between 30 and 59 days prior to the day of the tour. 25% refund if canceled between 13 and 29 days prior to the day of the tour. Non-refundable if canceled within 14 days prior to the day of the tour.  A cancellation fee of 3% of the total tour cost is deducted from the refund amount.

 

  1. ARBITRATION

Any controversy or claim arising out of or relating to these Terms, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
The place of arbitration shall be Denver, CO. The arbitration shall be governed by the laws of the State of Colorado. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. You understand that this Section means that, by using the Platform, you agree to arbitrate, thus, waiving your rights to sue in court and have a jury trial.

 

  1. GENERAL
  1. Communications. You agree that we can communicate with you electronically, via SMS, push notifications, email or phone calls. All electronic communications shall have the same legal force as if they were in paper form.
  2. Hyperlinks. Linking to our Platform is allowed, however, it must always be done in a way that does not adversely affect our business or implies some form of association when there is none.
  3. Severability. If any part of these Terms is found to be unenforceable, then only that particular portion, and not the entire Terms, will be unenforceable.
  4. Assignment. We have the right, at our sole discretion, to assign or subcontract our rights or obligations outlined in these Terms.
  5. Waiver. Our failure to exercise any of our rights under these Terms shall not be considered a waiver to exercise them in other instances. No waiver shall be effective unless it is in writing signed by us.
  6. Prevailing Language. If there are any inconsistencies or conflicts between the English original of these Terms and any foreign language translation, the English version shall prevail.