1) VESSELS, CAPTAINS
2) TERMS OF SERVICE
1) VESSELS, CAPTAINS
Vessel Listing Eligibility
In order for your vessel to be eligible for listing with ImageSails, it must meet all of the following requirements:
- Has not been modified in any way that is not endorsed or approved by the manufacturer
- Has current insurance as specified herein, registration, and any federally required licensing or other documentation
- Both charter and boat rental companies may list their boats on ImageSails, invoking their own charter/commercial insurance.
If the Vessel Owner acts as Captain or provides a Captain for the Rental:
- The designated Captain must have all necessary and required licenses, permits and certificates to operate the Vessel and these must be in full force and effect during the rental
- The Vessel must meet all federal, state, and local requirements that might apply
- No more than 6 passengers are permitted
Captains Terms of Service
In order to promote safety and a great experience, ImageSails provides a list of available Captains which can be hired by the Renter whether required by the Owner or requested by the Renter. IMAGESAILS CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY LISTINGS OR OFFERINGS BY CAPTAINS NOR THE CONDITION, LEGALITY, SUITABILITY, INSURABILITY OR QUALIFICATIONS OF ANY CAPTAINS. ImageSails never approves or endorses any Captain. ImageSails requires Captains to submit evidence of their qualifications at the time of initial sign up but does not and is not responsible to ensure that a Captain’s credentials remain current at the time of any particular Charter. Ensuring that a Captain is currently credentialed and properly qualified for a particular Vessel or Charter is the sole responsibility of the Renter.
Captains Are Strictly Retained by Renter
Renter agrees that it alone will be the employer of any Captain selected and / or hired by Renter and that said Captain will be so notified by Renter and agree that they are not the employee or borrowed servant of the Owner or ImageSails and will make no claims of any kind against Owner or ImageSails on the basis of any alleged employment relationship.
2) TERMS OF SERVICE
THE SERVICES COMPRISE AN ONLINE PLATFORM THROUGH WHICH OWNERS (DEFINED BELOW) MAY CREATE LISTINGS (DEFINED BELOW) FOR VesselS (DEFINED BELOW) AND RENTERS (DEFINED BELOW) MAY LEARN ABOUT AND BOOK VesselS. YOU UNDERSTAND AND AGREE THAT ImageSails IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN OWNERS AND RENTERS, NOR IS ImageSails A Vessel BROKER, AGENT OR INSURER. ImageSails HAS NO CONTROL OVER THE CONDUCT OF OWNERS, RENTERS AND OTHER USERS OF THE SITE, APPLICATION AND SERVICES OR ANY VesselS, AND DISCLAIMS ALL LIABILITY IN THIS REGARD.
“Vessels” means marine Vessels, or other Vessels, including, but not limited to, sailboats, ski boats, yachts, houseboats, kayaks, kite surfers, wind surfers, sailboards, parachutes, canopies, hang gliders, balloons, or other Vessels,
“ImageSails Content” means all Content that ImageSails makes available through the Site, Application, or Services, including any Content licensed from a third party, but excluding Member Content.
“Collective Content” means Member Content and ImageSails Content.
“Content” means text, graphics, images, music, software (excluding the Application), audio, video, information and any other content or materials.
“Renter” means a Member who requests a booking of a Vessel via the Services, or a Member who uses a Vessel and is not the Owner for such Vessel.
“Owner” means a person who creates and manages a Listing via the Services, is responsible for approving rentals, checking in or out a renter, or responding to messages on the website. The owner does not have to be the Vessel owner, but will need to be appointed and approved by the Vessel owner.
“Listing” means a vessel that is listed by an Owner as available for rental via the Services.
“Member” means a person who completes ImageSails’ account registration process, including, but not limited to Owners and Renters, as described under “Account Registration” below.
“Member Content” means all Content that a Member posts, uploads, publishes, submits or transmits to be made available through the Services.
“Tax” or “Taxes” mean any sales taxes, 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 the Services (and your access to or use of certain aspects of the Services or 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 the Services, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Services.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SERVICES OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SERVICES, OR BY PARTICIPATING IN THE REFERRAL PROGRAM, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE US. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICES OR TO PARTICIPATE IN THE REFERRAL PROGRAM.
If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “ you” and “your” will refer and apply to that company or other legal entity.
ImageSails reserves the right, at its sole discretion, to modify the Services or to modify these Terms, including the Service Fees, at any time and without prior notice. If we modify these Terms, we will post the modification on the Services or provide you with notice of the modification. We will also update the “ Last Updated Date” at the top of these Terms. By continuing to access or use the Services after we have posted a modification on the Services 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 the Services.
You agree that you will comply with all written ImageSails rules, agreements, and policies that are made available by ImageSails on the Services and which are incorporated herein by reference. These include, without limitation:
- Fees Policy
- Cancellation Policy
- Insurance Policy
- Vessel Eligibility Policy
- Copyright Policy
- Booking Agreement (available at time of booking)
- or any other policies posted on the Services
The Services are intended solely for persons who are 21 or older. Any access to or use of the Services by anyone under 21 is expressly prohibited. By accessing or using the Services you represent and warrant that you are 21 or older.
How the Services Work
The Services can be used to facilitate the listing and booking of Vessels. Such Vessels are included in Listings on the Services by Owners. You may view Listings as an unregistered visitor to the Services; however, if you wish to book a Vessel or create a Listing, you must first register to create a ImageSails Account (defined below).
As stated above, ImageSails makes available a platform or marketplace with related technology for Renters and Owners to meet online and arrange for bookings of Vessels. ImageSails is not an owner or operator of Vessels, including, but not limited to, sailboats, ski boats, yachts, houseboats, kayaks, kite surfers, wind surfers, sailboards, parachutes, canopies, hang gliders, balloons, or other vessels, nor is it a provider of Vessels, including, but not limited to, sailboats, ski boats, yachts, houseboats, kayaks, kite surfers, wind surfers, sailboards, parachutes, canopies, hang gliders, balloons, or other vessels, and ImageSails does not own, sell, resell, furnish, provide, rent, re-rent, manage and/or control Vessels, including, but not limited to, sailboats, ski boats, yachts, houseboats, kayaks, kite surfers, wind surfers, sailboards, parachutes, canopies, hang gliders, balloons, or other vessels, or transportation or travel services. ImageSails’ responsibilities are limited to: (i) facilitating the availability of the Services and (ii) serving as the limited agent of each Owner for the purpose of accepting payments from Renters on behalf of the Owner.
PLEASE NOTE THAT, AS STATED ABOVE, THE SERVICES ARE INTENDED TO BE USED TO FACILITATE THE BOOKING OF VESSELS. IMAGESAILS CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY LISTINGS AND THE CONDITION, LEGALITY OR SUITABILITY OF ANY VESSELS. IMAGESAILS IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS AND VESSELS. ACCORDINGLY, ANY BOOKINGS WILL BE MADE AT THE RENTER’S AND OWNER’S OWN RISK.
In order to access certain features of the Services, and to book a Vessel or create a Listing, you must register to create an account (“ImageSails Account”) and become a Member. You may register to join the Services directly via the Services or as described in this section.
You can also register to join by logging into your account with certain third party social networking sites (“ TPA”) (including, but not limited to, Facebook); each such account, a “Third Party Account”, via our Services, as described below. As part of the functionality of the Services, you may link your ImageSails Account with Third Party Accounts, by either: (i) providing your Third Party Account login information to ImageSails through the Services; or (ii) allowing ImageSails to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to ImageSails and/or grant ImageSails access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating ImageSails to pay any fees or making ImageSails subject to any usage limitations imposed by such third party service providers. By granting ImageSails access to any Third Party Accounts, you understand that ImageSails will access, make available and store (if applicable) any Content that you have provided to and stored in your Third Party Account (“TPA Content”) so that it is available on and through the Services via your ImageSails Account and ImageSails Account profile page. Unless otherwise specified in these Terms, all TPA Content, if any, will be considered to be Member Content for all purposes of these Terms. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts will be available on and through your ImageSails Account on the Site, Services and Application. Please note that if a Third Party Account or associated service becomes unavailable or ImageSails’ access to such Third Party Account is terminated by the third party service provider, then TPA Content will no longer be available on and through the Site, Services and Application. You have the ability to disable the connection between your ImageSails Account and your Third Party Accounts, at any time, by accessing the “Account” section of the Site and Application.
PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS.
ImageSails makes no effort to review any TPA Content for any purpose, including but not limited to, for accuracy, legality or non-infringement and ImageSails is not responsible for any TPA Content.
We will create your ImageSails Account and your ImageSails Account profile page for your use of the Services based upon the personal information you provide to us or that we obtain via an TPA as described above. You may not have more than one (1) active ImageSails Account. 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. ImageSails reserves the right to suspend or terminate your ImageSails Account and your access to the Services if you create more than one (1) ImageSails Account 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 ImageSails Account, whether or not you have authorized such activities or actions. You will immediately notify ImageSails of any unauthorized use of your ImageSails Account.
As a Member, you may create Listings. To this end, you will be asked a variety of questions about the Vessel to be listed, including, but not limited to, the value, location, size, features, availability of the Vessel, pricing, related rules, and financial terms. You acknowledge and agree that Listings will be made publicly available via the Services. Other Members will be able to book your Vessel via the Services based upon the information provided in your Listing. You understand and agree that once a Renter requests a booking of your Vessel, the price for such booking may not be altered without contacting customer service.
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 Renter use of, a Vessel in a Listing you post (i) will not breach any agreements you have entered into with any third parties and (ii) will (a) be in compliance with all applicable laws, Tax requirements, and rules and regulations that may apply to any Vessel included in a Listing you post, including, but not limited to, insurance requirements, coast guard regulations, zoning laws, marina regulations, and laws governing rentals and operation of Vessels and (b) not conflict with the rights of third parties. Please note that ImageSails assumes no responsibility for an Owner’s compliance with any applicable laws, rules and regulations. ImageSails reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason, including Listings that ImageSails, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Services.
You understand and agree that ImageSails does not act as an insurer or as a contracting agent for you as an Owner. If a Renter requests a booking of your Vessel and uses your Vessel, any agreement you enter into with such Renter is between you and the Renter and ImageSails is not a party thereto. Notwithstanding the foregoing, ImageSails serves as the limited authorized agent of the Owner for the purpose of accepting payments from Renters on behalf of the Owner and is responsible for transmitting such payments to the Owner.
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 Vessel, including, but not limited to, requiring Members to have a profile picture or verified phone number, in order to book your Vessel. Any Member wishing to book Vessels included in Listings with such requirements must meet these requirements; however, as noted below, we do not attempt to confirm or verify such information. More information on how to set such requirements is available via the “ Owners” section of the Services.
If you are an Owner, ImageSails makes certain tools available to you to help you to make informed decisions about which Members you choose to confirm for booking for your Vessel. You acknowledge and agree that, as an Owner, you are responsible for your own acts and omissions.
ImageSails reserves the right to edit any and all information in vessel listings, including but not limited to its description, other text, and photographs. If Desired Daily Rate is left blank or marked “negotiable,” or similar, ImageSails will set the price and discounts it determines appropriate, without further notification.
ImageSails does not endorse any Members or any Vessels. 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 or other information provided by such Member. You are responsible for determining the identity and suitability of others who you contact via the Services. Except as provided by the ImageSails Terms and Conditions, we will not be responsible for any damage or harm resulting from your interactions with other Members.
ImageSails may provide, at the same cost, a vessel it considers of equal ability to provide the services requested.
By using the Services, 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 ImageSails with respect to such actions or omissions. Accordingly, we encourage you to communicate directly with other Members on the Services regarding any bookings or Listings made by you. This limitation shall not apply to any claim by an Owner against ImageSails regarding the remittance of payments received from a Renter by ImageSails on behalf of an Owner, which instead shall be subject to the limitations described in the section below entitled “ Limitation of Liability”.
Bookings and Financial Terms
If you are an Owner and a booking is requested for your Vessel via the Services, you may be required to either confirm or reject the booking within 24 hours of when the booking is requested (as determined by ImageSails in its sole discretion) or the booking request may be automatically canceled. When a booking is requested via the Services, we will share with you (i) the first and last name of the Renter who has requested the booking, and, (ii) a link to the Renter’s ImageSails Account profile page,so that you can view such information before confirming or rejecting the booking. If you are unable to confirm or decide to reject a booking of a Vessel within such 24 hour period, any amounts collected by ImageSails for the requested booking may be refunded to the applicable Renter’s credit card and any pre-authorization of such credit card will be released. When you confirm a booking requested by a Renter, ImageSails will send you an email, text message or message via the Services confirming such booking, depending on the selections you make via the Services.
The fees displayed in each Listing are comprised of the Vessel Fees (defined below) and the Renter Fees (defined below.) Where applicable, Taxes may be charged in addition to the Vessel Fees and Renter Fees. The Vessel Fees, the Renter Fees and applicable Taxes are collectively referred to in these Terms as the “ Total Fees”. The amounts due and payable by a Renter solely relating to an Owner’s Vessel which are actually collected by ImageSails are the “Vessel Fees”. Please note that it is the Owner and not ImageSails which determines the Vessel Fees. The Vessel Fees may include cleaning fees, pre-paid fuel charges, at the Owner’s discretion.
ImageSails charges a fee to Renters based upon a percentage of applicable Vessel Fees which are the “ Service Fees”. The Service Fees are added to the Vessel Fees to calculate the Total Fees (which will also include applicable Taxes) displayed in the applicable Listing. ImageSails will collect the Total Fees at the time of booking confirmation (i.e. when the Owner confirms the booking within 24 hours of the booking request) and will initiate payment of the Vessel Fees (less ImageSails’ Service Fees as defined in the Fees Policy to the Owner two business days after of when the Renter arrives at the applicable Vessel (except to the extent that a refund is due to the Renter). Failure to charge any of the fees or other indulgences shall not constitute a waiver of the right to exercise the same in the event another fee should become due at any other time.
The minimum age to book is 21.
Appointment of ImageSails as Payment Agent for Owner
Each Owner hereby appoints ImageSails as the Owner’s limited agent solely for the purpose of collecting payments made by Renters on behalf of the Owner. Each Owner agrees that payment of Vessel fees made by a Renter to ImageSails shall be considered the same as a payment made directly to the Owner and the Owner will make the Vessel available to Renter in the agreed upon manner as if the Owner has received the Vessel Fees. Each Owner agrees that ImageSails may, in accordance with the cancellation policy selected by the Owner and reflected in the relevant Listing, (i) permit the Renter to cancel the booking and (ii) refund to the Renter that portion of the Vessel Fees specified in the applicable cancellation policy. In accepting appointment as the limited authorized agent of the Owner, ImageSails assumes no liability for any acts or omissions of the Owner.
Please note that ImageSails does not currently charge fees for the creation of Listings. However, you acknowledge and agree that ImageSails reserves the right, in its sole discretion, to charge you for and collect fees from you for the creation of Listings, or for other features of the Services. Please note that ImageSails will provide notice of any such additional fees via the Services, prior to implementing such fees.
Bookings and Financial Terms for Renters
The Owners, not ImageSails, are solely responsible for honoring any confirmed bookings and making available any Vessels reserved through the Services. If you, as a Renter, choose to enter into a transaction with an Owner for the booking of a Vessel, you agree and understand that you will be required to enter into an agreement with the Owner and you agree to accept any terms, conditions, rules and restrictions associated with such Vessel imposed by the Owner. You acknowledge and agree that you, and not ImageSails, will be responsible for performing the obligations of any such agreements, that ImageSails is not a party to such agreements, and that, with the exception of its obligations hereunder to pay Vessel Fees to the applicable Owner, ImageSails disclaims all liability arising from or related to any such agreements. You acknowledge and agree that, notwithstanding the fact that ImageSails is not a party to the agreement between you and the Owner, ImageSails acts as the Owner’s payment agent for the limited purpose of accepting payments from you on behalf of the Owner. Upon your payment of amounts to ImageSails which are due to the Owner, your payment obligation to the Owner for such amounts is extinguished, and ImageSails is responsible for remitting such amounts, less ImageSails’ Owner Fees, to the Owner. In the event that ImageSails does not remit any such amounts to an Owner, such Owner will have recourse for such amounts only against ImageSails.
Listings for Vessels will specify the Total Fees. As noted above, the Owner is required to either confirm or reject the booking within 24 hours of when the booking is requested (as determined by ImageSails in its sole discretion) or the requested booking may be automatically canceled. If a requested booking is canceled (i.e. not confirmed by the applicable Owner), any amounts collected by ImageSails will be refunded to such Renter, depending on the selections the Renter makes via the Services, and any pre-authorization of such Renter’s credit card will be released, if applicable.
You agree to pay ImageSails for the Total Fees for any booking requested in connection with your ImageSails Account if such requested bookings are confirmed by the applicable Owner. In order to establish a booking pending the applicable Owner’s confirmation of your requested booking, you understand and agree that ImageSails, on behalf of the Owner, reserves the right, in its sole discretion, to (i) obtain a pre-authorization via your credit card for the Total Fees or (ii) charge your credit card a nominal amount, not to exceed one dollar ($1) to verify your credit card. Once ImageSails receives confirmation of your booking from the applicable Owner, ImageSails will collect the Total Fees in accordance with these Terms and the pricing terms set forth in the applicable Listing. Please note that ImageSails cannot control any fees that may be charged to a Renter by his or her bank related to ImageSails’ collection of the Total Fees, and ImageSails disclaims all liability in this regard.
Payment Processing Errors
We will take steps to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the same payment method used for the original payout to or payment by you, so that you end up receiving or paying the correct amount.
Payment Processor Terms (PayPal)
Payment processing services for users on ImageSails are provided by PayPal and are subject to the PayPal Connected Account Agreement which includes the PayPal Terms of Service (collectively, the “PayPal Services Agreement”). By agreeing to these terms or continuing to use ImageSails’ website or services, 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 ImageSails enabling payment processing services through Stripe, you agree to provide ImageSails accurate and complete information about you and your business, and you authorize ImageSails to share it and transaction information related to your use of the payment processing services provided by Stripe.
ImageSails includes a security deposits in every Listing (“Security Deposits”). For all Security Deposits included in a Listing for a confirmed booking of Vessel, ImageSails will, in its capacity as the payment agent of the Owner, use its commercially reasonable efforts to obtain a pre-authorization of the Renter’s credit card in the amount the Owner determines for the Security Deposit within a reasonable time prior to the Renter’s check-in at the applicable Owner’s Vessel. ImageSails will also use its commercially reasonable efforts to address Owners’ requests and claims related to Security Deposits, but ImageSails is not responsible for administering or accepting any claims by Owners related to Security Deposits, and disclaims any and all liability in this regard.
In consideration for providing the Services, ImageSails collects service fees from Owners and Renters (“ Service Fees”). Service Fees are made up of two (2) components: (i) Renter Service Fees and (ii) an Owner Service Fee that is charged to the Owner based upon a percentage of the amount of the Vessel Fees (“Owner Fees”). Where applicable, Taxes may also be charged in addition to the Owner Fees. Owner Fees are deducted from the Vessel Fees before remitting the Vessel Fees to the Owner, within 24 hours of when the Renter arrives at the applicable Vessel. Renter Fees are, as noted above, included in the Total Fees.
Balances will be remitted by ImageSails to Owners direct deposit or other payment methods described on the Services, in the US dollars. More information on Services Fees can be found herein. Except as otherwise provided herein, Service Fees are non-refundable.
As a Member, by referring your friends to request a booking or create a Listing that receives a confirmed booking via the Site, you may participate in the “ Referral Program”, which is a loyalty program we offer to our Members. If you choose to participate in the Referral Program, for each friend you refer to ImageSails for which a Qualifying Referral (defined below) is completed, you may be able to receive ImageSails Credits (defined below) (each a “Referral Reward”). “ImageSails Credits” are “reward points” that may be applied as credits toward future confirmed bookings made by Members via the Site.
In order to receive a Referral Reward, each of the following requirements must be met (collectively, a “ Qualifying Referral”): (i) you must log in to your ImageSails Account on the Site and select either the “Invite Friends on Facebook” or “Invite Friends on Twitter” link; (ii) you must share the link provided with friends, by copying and pasting the unique referral link generated via the Services, by sending the unique referral link generated via the Services in an email via the Services to your friends; or by using the other tools provided by ImageSails to share the unique referral link with friends; (iii) a friend who clicks the link on Facebook or otherwise or clicks the link contained in the email must create a ImageSails Account and become a Member; and (iv) after becoming a Member, the friend must either request a booking of a Vessel which is confirmed by the applicable Owner or create a Listing which subsequently receives a confirmed booking via the Services with Total Fees of at least two hundred dollars ($200) that is not subsequently cancelled. Please note that you may not be the Owner or the Renter for the booking to receive a Referral Reward.
Satisfaction of a Qualifying Referral and the Referral Reward you receive will be reflected in your ImageSails Account in a reasonable amount of time after the Qualifying Referral has been completed. The Referral Rewards you accrue will be displayed in your user Account page. Referral Rewards can be accrued solely by you and you may not earn Referral Rewards by permitting another individual to use your ImageSails Account. Referral Rewards accrued in multiple ImageSails Accounts may not be combined into one ImageSails Account. You may not earn Referral Rewards by creating multiple ImageSails Accounts. By acquiring Referral Rewards, you agree and acknowledge that ImageSails is granting you a limited, revocable license to a digital item, and that Referral Rewards are not your personal property. You may not obtain any cash or money in exchange for Referral Rewards. Except as explicitly provided herein, Referral Rewards are non-transferable. Members are responsible for keeping track of the Referral Rewards in their ImageSails Accounts.
Specific Terms Regarding ImageSails Credits
ImageSails Credits may only be redeemed for confirmed bookings via the Site and after you accrue ImageSails Credits, such ImageSails Credits will be automatically applied to your next confirmed booking made via the Site. You may only redeem ImageSails Credits after the ImageSails Credits are reflected in your ImageSails Account. The scope, variety, and type of services and products that you may obtain by redeeming ImageSails Credits can change at any time.
ImageSails Credits expire one (1) year from the date that any ImageSails Credits are last accrued in your ImageSails Account. ImageSails will notify you at the email address you provided during Account registration within thirty (30) days of when the ImageSails Credits in your ImageSails Account are scheduled to expire. If for some reason you believe that there is a discrepancy regarding your balance of ImageSails Credits, please contact us via a support ticket. ImageSails may require to you to submit additional information in order to make a determination regarding your balance. All decisions regarding your balance will be final and at ImageSails’ sole discretion. You are responsible for any Tax consequences, if any, that may result from your redemption or use of ImageSails Credits.
Without limiting any other terms of these Terms and subject to applicable law, all ImageSails Credits are forfeited if your ImageSails Account is terminated or suspended for any reason, in ImageSails’ sole discretion, or if ImageSails discontinues providing the Site or the Referral Program.
Limited Time Only
This incentive program is for a limited time only. The requirements and incentives are subject to change. We reserve the right to suspend your account and remove referrals should we notice any activity we determine as abuse of the referral program.
General Booking and Financial Terms; Liability; Indemnification; Insurance Requirements; Damage to Vessels
Intellectual Property Rights
- All Rights Reserved. Contractor acknowledges and agrees that Company reserves the right to create and use, for any purpose whatsoever, content that includes images of Contractor’s vessel (the “Content”). Such content can be in any format, including but not limited to, photographic images and video.
- Care of Company Property. Contractor agrees that it will take the utmost care at all times when lowering, raising, handling, storing, packaging, shipping, and using all Company property entrusted to Contractor under this Agreement, including but not limited to, Company’s custom printed sail (“Company Property” or “the Sail”).
- Damage to Company Property or the Sail. Contractor shall be solely responsible for any and all damage caused to the Sail or other Company Property entrusted to Contractor.
- Liquidated Damages. If Company determines in its sole discretion that Contractor has caused functional or aesthetic damage to the Sail then Contractor agrees to purchase such sail from Company for the replacement cost of ten thousand dollars USD ($10,000.00).
- Reasonableness. Contractor hereby acknowledges and agrees that above liquidated damages clause is reasonable given the Sail’s uniqueness and the Company’s inability to repair or replace it without considerable cost and effort.
- Notice. Company or Contractor may terminate this Agreement at any time, with or without cause, with or without advance notice, for any reason or no reason upon fifteen (30) days advance to the other.
- Return of Company Property. Contractor agrees that all Company Property, including but not limited to, the Sail shall be and remain the sole and exclusive property of Company. Contractor agrees that upon the termination of this Agreement, whether voluntary or involuntary, it shall return all such property to Company immediately in materially the same condition as when it was provided to Contractor.
Limited Liability; Indemnification; Insurance Requirements
A. Contractor Assumes All Liability. Contractor assumes ALL liability stemming from performing its services pursuant to this Agreement, including but not limited to: damage to Contractor’s vessel; injuries to Contractors passengers or crew; Advertiser liability, and damage to the Sail.
B. Indemnification. Contractor shall indemnify, defend, and hold harmless Company, its affiliates, and their officers, directors, employees, agents, representatives and contractors (each, an “Indemnified Party”), from any and all claims, losses, liabilities, costs and expenses, including reasonable attorneys’ fees, as incurred, arising out of, relating to or resulting from any third party claim based upon: (a) bodily injury, death, sickness or property damage caused by Contractor, (b) breach of this Agreement by Contractor, (c) any willful, reckless or negligent act or omission of Contractor, (d) any violation of laws, statutes, codes, ordinances, rules and regulations by Contractor, and (e) any claim by a third party that the Content or any other materials of any nature furnished by Contractor, or that the use thereof, infringes, misappropriates or violates such third party’s Intellectual Property Rights, arising out of or in any way connected with (a) your access to or use of the Services or Collective Content or your violation of these Terms; (b) your Member Content; (c) your (i) interaction with any Member, (ii) booking or use of a Vessel, (iii) creation of a Listing or (iv) the use, condition or rental of a Vessel 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 Vessel, or any and all services offered by ImageSails.
i.Indemnification Procedures. The Indemnified Party shall: (a) give prompt notice to Contractor of the existence of the indemnifiable event, and (b) provide, at Contractor’s expense, such information, cooperation and assistance to Contractor as may be reasonably necessary for Contractor to defend or settle the claim or action. Any such settlement by Contractor shall require the Indemnified Party’s prior written consent, such consent not to be unreasonably withheld. Any failure to comply with the foregoing obligations shall not constitute a waiver of Contractor’s indemnification obligations, except to the extent Contractor’s ability to fulfill its indemnification obligations are materially impaired.
C. Insurance Requirements. Prior to the effective date and throughout the Term of this Agreement and for a period of one (1) year thereafter, Contractor shall procure and maintain, at its own expense, insurance as described in this section. Such insurance shall be with insurers acceptable to Company and shall comply with the minimum requirements described below. All amounts listed are calculated in US dollars. The descriptions of the required coverage below may require adjustment to conform to laws and general commercial practice in jurisdictions outside the United States. Contractor agrees to advise Company in writing of any such adjustment for any jurisdiction covered hereunder within thirty (30) days of the execution of this Agreement.
i. Commercial General Liability. Commercial general liability insurance, including products liability insurance covering bodily injury (including personal injury) and property damage with a combined single limit of not less than $5,000,000 per occurrence/annual aggregate. Such limit may be satisfied through any combination of primary liability and umbrella liability policies. All such insurance shall include contractual liability coverage for the performance by Contractor of its indemnity agreements.
ii. Workers’ Compensation. Workers’ compensation and employers liability within applicable statutory limits provided for workers compensation and employers’ liability limits of not less than $1,000,000 each accident for bodily injury by accident or $1,000,000 each employee for bodily injury by disease. This insurance shall apply as primary and non-contributory insurance. Contractor waives all rights against Company, its affiliates, and their agents, officers, directors and employees.
iii. Passenger Vessel Insurance. Passenger vessel liability insurance with policy limits of not less than $1,000,000 each accident. Contractor waives all rights against Company, its affiliates, and their agents, officers, directors and employees.
iv. Additional Insureds; Evidence of Insurance. Company shall be included as additional insureds. Prior to the execution of this Agreement, upon the annual anniversary of this Agreement, at each renewal thereafter and upon request by Company, Contractor shall deliver a certificate, executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements set forth above. Contractor shall provide at least thirty (30) days’ prior written notice to Company of any termination, cancellation, non-renewal or material change to any insurance referenced herein.
v. No Representation of Coverage Adequacy. By requiring insurance herein, Company does not represent that coverage and limits will necessarily be adequate to protect Contractor, and such coverage and limits shall not be deemed as a limitation of Contractor’s liability under the indemnities granted in favor of Company in this Agreement.
Relationship of Parties
A. Contractor’s Representations and Responsibilities. Contractor is an independent contractor of Company. Nothing in this Agreement shall be construed as creating a joint venture, an employer-employee relationship, as a guarantee of future employment or engagement. Contractor agrees to be responsible for all of Contractor’s own federal and state taxes (corporate or individual) and/or any other benefits (e.g., health or other kinds of insurance). Contractor bears the sole and exclusive responsibility to make and pay all such contributions and taxes. Contractor will be solely responsible for all of such payments, withholdings, or benefits, if any as required under law, and Contractor will indemnify and hold harmless Company and its successors, assigns, directors, officers, shareholders, agents and/or employees from any and all losses or liability arising from its failure to make such payments, withholdings, and benefits, if any. Nothing in this Agreement constitutes or appoints Contractor as an agent, legal representative, partner, employee or servant of the Company for any purpose whatsoever. The authority of Contractor hereunder is strictly limited to the performance of her/his services under this Agreement.
B. Company’s Representations and Responsibilities. Contractor is not and will not be treated as an employee for federal, state or local tax purposes. Company will not withhold from any compensation due to Contractor or make any contribution on account of Contractor’s compensation to or under the Federal Insurance Contributions Act (FICA), the Federal Unemployment Tax Act (FUTA) or any other Federal, State or Local income or other tax or benefits program (e.g., unemployment or worker’s compensation) arising out of Contractor’s services or compensation.
Non-disclosure, non-competition, and non-solicitation
A. This Section shall survive any termination of this Agreement, whether voluntary or involuntary, and regardless of the circumstances of the termination.
B. Non-Disclosure. Contractor acknowledges and agrees that Company, through the expenditure of substantial time, effort and money, has developed certain confidential information and trade secrets that have become of great value to Company. Contractor acknowledges that such trade secrets and confidential information includes, but is not limited to, proprietary business information concerning Company and its business operations, marketing, sales, costs, business methods, customers (including customer lists), accounts and vendors; financial information concerning Company; information regarding Company’s employees and independent contractors, payroll, general personnel, computer software programs and any rights relating thereto; information relating to any product (whether actual or proposed), development (including any improvement, advancement or modification thereto), technology, technique, process or methodology of Company; any operational and management guidelines; any corporate and commercial policies; any cost or pricing data and/or projections; and any other similar information which is proprietary in nature. Contractor acknowledges that such information, hereinafter referred to as “trade secrets” or “confidential information,” has been provided or otherwise made available to Contractor solely in connection with Contractor’s engagement by Company and is not generally known to the trade or industry. Contractor further acknowledges that such trade secrets or confidential information constitute “legitimate business interests” of Company which must be protected. Accordingly, Contractor covenants and agrees that she/he will not make independent use of, utilize, disclose, publish, or authorize anyone to disclose or publish to any other person or organization, any of Company’s trade secrets or confidential information. Upon the termination of her/his engagement, regardless of the circumstances under which the engagement is terminated, Contractor shall surrender to Company all such information, including reproductions of any kind, in the custody, possession or control of Contractor.
C. Non-Competition. During the period of Contractor’s engagement with Company and for a period of two (2) years thereafter, regardless of the circumstances under which the engagement is terminated, Contractor agrees not to, directly or indirectly, for herself/himself or any third party, accept employment or engage in any business or activity that is directly or indirectly in competition with Company. The geographical area to which this non-competition agreement applies is any area in which Company currently solicits or conducts business, and/or any area in which Company plans to solicit or conduct business for a period of two years after Contractor engagement with Company ends.
D. Non-Solicitation. During the period of Contractor’s engagement and for a period of two (2) years thereafter, regardless of the circumstances under which the engagement is terminated, Contractor agrees not to, directly or indirectly, for Contractor, or for others, contact, solicit, or divert or take away business from, any existing or prospective clients, customers, accounts, vendors, lenders, agents, or any other individual or entity of Company with whom Contractor obtained, maintained, or developed business contact or a business relationship during Contractor’s engagement with Company, or with whom Contractor conducted business in any manner as a result of or in the furtherance of Contractor’s engagement with Company. Contractor further agrees that for a period of two (2) years following the termination of her/his engagement hereunder, she/he will not solicit, hire or otherwise retain the services of any Contractor, independent contractor, worker, or agent of Company and Contractor will not encourage or induce any such persons to terminate their relationships with Company.
E. Reasonableness. Contractor acknowledges that the restrictive covenants set forth in this Section are reasonably necessary for the protection of the important and legitimate interests of the Company. These covenants are reasonable as to duration, scope, and territory, and are not unreasonably restrictive upon the rights of Contractor, who is qualified to work in businesses other than those that are competitive with Company and is confident in her/his ability to do so if necessary.
F. Modification. In the event that any term or sentence of this Section is deemed by a court of competent jurisdiction (or arbitrator) to be unenforceable for any reason, such enforceable provision of a lesser duration or effect shall be substituted; provided, however, the unenforceability of any term or sentence (or any other portion) of this Agreement shall not affect the enforceability of the remainder of this Agreement. Further, the covenants set forth herein shall be construed as agreements independent of any other provision in any other agreement by, between, among, or affecting Company and Contractor, and the existence of any claim or cause of action of Contractor against Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of this Agreement.
G. Additional Representations. Contractor has carefully read and considered the provisions of this Agreement, and having done so agrees that the restrictions set forth herein are fair and reasonable and are reasonably required for the protection of the interests of Company, its assignees, affiliates, founders, directors, officers and other Contractors and to prevent irreparable harm to the foregoing. Contractor understands that in the event she/he violates any of the terms of any of the restrictive covenants contained in this Section herein, the duration of these restrictive covenants shall be extended for the entire time of the violation so that Company is provided with the benefit of the full time period provided herein.
H. Damages. Contractor understands that any breach under this Section constitutes a material breach of this Agreement. Contractor recognizes that irreparable injury will result to Company, its business and property in the event of any breach of this Agreement, and that Contractor’s continued services are based primarily upon the assurances made herein. Accordingly, Contractor agrees that Company, in addition to any monetary damages or other remedies available, including reasonable attorneys’ fees, shall be entitled to an injunction to restrain the violation or compel the performance of any or all of the terms of this Agreement by Contractor, her/his servants, agents, partners or companies, or any and all persons acting for or with Contractor.
Contractor may not assign, pledge or encumber her/his interest in this Agreement or any part thereof. Contractor agrees that the terms of this Agreement will continue in full force and effect if Company or substantially all of its assets is/are acquired by another entity or individual.
Attorneys’ Fees and Costs
Contractor and Company agree that should any dispute (or litigation in court) be instituted by either party against the other regarding the enforcement of the terms of this Agreement, the prevailing party shall be entitled to recover all of its expenses related to any such litigation including, but not limited to, reasonable attorneys’ fees and costs, both before and after judgment (including at the appellate level).
A. Notice. All notices, demands, requests and replies required or permitted by this Agreement shall be in writing and shall be deemed given when delivered in person or sent first class mail, postage pre-paid, or US Registered Mail; or electronic mail; addressed as follows:
For Company: ImageSails, LLC [Address available upon request to: firstname.lastname@example.org]
Any party may change its address for purposes of this paragraph by giving the other party written notice of the new address in the manner set forth above.
B. Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement.
C. Severability. To the extent that any provision herein is deemed unenforceable, all remaining provisions of this Agreement shall not be affected thereby and shall remain in full force and effect.
D. Modification. This Agreement may not be waived, changed, modified, abandoned, or terminated, in whole or in part, except by a separate agreement signed by Company and by Contractor.
E. No Waiver of Breach. The failure to enforce any provision of this Agreement will not be construed as a waiver of any such provision, nor prevent a party thereafter from enforcing the provision or any other provision of this Agreement. The rights granted to the Parties are cumulative, and the election of one will not constitute a waiver of such party’s right to assert all other legal and equitable remedies available under the circumstances.
F. Choice of Law, Jurisdiction, and Venue. This Agreement shall be construed in accordance with, and governed in all respects by, the laws of the State of Florida, without regard to conflicts of law principles. The Parties voluntarily consent to the jurisdiction of all Federal and State Courts located in the State of Florida. The Parties further agree and consent that venue of any action hereunder shall be undertaken exclusively in the County of Miami-Dade, State of Florida.
G. Return of Company’s Property. At any time upon the demand of Company, and/or upon termination of Contractor’s services for Company (whether voluntary or involuntary), Contractor will immediately deliver to Company all data, manuals, specifications, lists, notes, writings, customer and product lists, photocopies, microfilm, tape recordings, computer disks, patterns, art work, and all other documents or tangible materials whatsoever, including all copies or duplicates, concerning any part of Company’s activities or concerning any part of her/his activities as an Contractor. Contractor acknowledges that all such items, including Contractor’s e-mails and notes, are the property of Company, though they may be entrusted to Contractor on a temporary basis.
H. Interpretation. The headings contained in this Agreement are for reference purpose only and shall not affect in any way the meaning or interpretation of this Agreement. Contractor agrees that Company has given Contractor the opportunity to have this document reviewed by an attorney. The Parties negotiated the terms herein. This Agreement shall not be interpreted more strictly against either party merely because that party drafted it.
Cancellations and Refunds
If, as a Renter, you cancel your requested booking before the requested booking is confirmed by an Owner, ImageSails will cancel any pre-authorization to your credit card and/or refund any nominal amounts charged to your credit card in connection with the requested booking within a commercially reasonable time. If, as a Renter, you wish to cancel a confirmed booking made via the Services, either prior to or after arriving at the Vessel, the cancellation policy of the Owner contained in the applicable Listing will apply to such cancellation. Our ability to refund the Vessel Fees and other amounts charged to you will depend upon the terms of the applicable cancellation policy. Details regarding refunds and cancellation policies are available via the Services.
If an Owner cancels a confirmed booking made via the Services, (i) ImageSails will refund the Total Fees for such booking to the applicable Renter within a commercially reasonable time of the cancellation and (ii) the Renter may receive an email or other communication from ImageSails containing alternative Listings and other related information. If the Renter requests a booking from one of the alternative Listings and the Owner associated with such alternative Listing confirms the Renter’s requested booking, then the Renter agrees to pay ImageSails the Total Fees relating to the confirmed booking for the Vessel in the alternative Listing, in accordance with these Terms. If an Owner canceled a confirmed booking and you, as a Renter, have not received an email or other communication from ImageSails, please contact our support team via a support ticket.
IRS regulation, regarding federal tax reporting requirements, stipulates that ImageSails must collect IRS Form W-9 from all Owners in the United States. You understand and agree that you are solely responsible for determining your applicable Tax reporting requirements in consultation with your tax advisors. ImageSails cannot and does not offer Tax-related advice to any Members of the Site, Application and Services. Additionally, please note that each Owner 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 Owner, ImageSails may issue a valid VAT invoice to such Owner.
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 the Services and Content. In connection with your use of our Services, you may not and you agree that you will not:
• violate any local, state, provincial, national, maritime or other law or regulation, or any order of a court, including, without limitation, zoning restrictions, admiralty law and Tax regulations;
• use manual or automated software, devices, scripts, robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Services or Content;
• use the Services for any commercial or other purposes that are not expressly permitted by these Terms;
• copy, store or otherwise access any information contained on the Services or Content for purposes not expressly permitted by these Terms;
• infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
• interfere with or damage our Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
• use our Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
• use our Services in connection with the distribution of unsolicited commercial email (“spam”) or advertisements unrelated to lodging in a private residence;
• “stalk” or harass any other user of our Services or collect or store any personally identifiable information about any other user other than for purposes of transacting as a ImageSails Renter or Owner;
• offer, as an Owner, any Vessels that you do not yourself own or have permission to rent
• offer, as an Owner, any Vessel that may not be rented pursuant to the terms and conditions of an agreement with a third party;
• register for more than one ImageSails Account or register for a ImageSails Account on behalf of an individual other than yourself;
• contact an Owner for any purpose other than asking a question related to a booking such Owner’s Vessels or Listings;
• contact a Renter for any purpose other than asking a question related to a booking or such Renter’s use of the Site, Application and Services;
• when acting as a Renter or otherwise, recruit or otherwise solicit any Owner or other Member to join third party services or websites that are competitive to ImageSails, without ImageSails’ prior written approval;
• impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
• use automated scripts to collect information or otherwise interact with the Services;
• use the Services to find an Owner or Renter and then complete a booking of a Vessel transaction independent of the Services in order to circumvent the obligation to pay any Service Fees related to ImageSails’ provision of the Services;
• as an Owner, submit any Listing with a false or misleading price information, or submit any Listing with a price that you do not intend to honor;
• post, upload, publish, submit or transmit any Content that, in ImageSails’ sole judgment: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
• systematically retrieve data or other content from our Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
• use, display, mirror or frame the Services, or any individual element within the Services, ImageSails’ name, any ImageSails trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without ImageSails’ express written consent;
• access, tamper with, or use non-public areas of the Services, ImageSails’ computer systems, or the technical delivery systems of ImageSails’ providers;
• attempt to probe, scan, or test the vulnerability of any ImageSails system or network or breach any security or authentication measures;
• avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by ImageSails or any of ImageSails’ providers or any other third party (including another user) to protect the Services or Collective Content;
• forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Collective Content to send altered, deceptive or false source-identifying information;
• attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Collective Content; or
• advocate, encourage, or assist any third party in doing any of the foregoing.
• ImageSails will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. ImageSails may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that ImageSails has no obligation to monitor your access to or use of the Services or Collective Content or to review or edit any Member Content, but has the right to do so for the purpose of operating the Services, 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. ImageSails reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that ImageSails, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Services.
The Services and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Services and Collective Content, including all associated intellectual property rights is the exclusive property of ImageSails and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Collective Content.
Some content on the ImageSails websites is digitally composed.
ImageSails Content and Member Content License
Subject to your compliance with these Terms, ImageSails grants you a limited, non-exclusive, non-transferable license, to (i) access and view any ImageSails 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 the Services 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 ImageSails 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 the Site, Application and Services, you hereby grant to ImageSails 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 the Services or otherwise. ImageSails 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 the Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Services or you have all rights, licenses, consents and releases that are necessary to grant to ImageSails 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 ImageSails’ use of the Member Content (or any portion thereof) on, through or by means of the Services or otherwise 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.
The Services may contain links to third-party websites or resources. You acknowledge and agree that ImageSails is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by ImageSails of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products or services on or available from such websites or resources.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of ImageSails used herein are trademarks or registered trademarks of ImageSails. 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 the Services (“ Feedback”). You may submit Feedback through our support portal via a support ticket. You acknowledge and agree that all Feedback will be the sole and exclusive property of ImageSails and you hereby irrevocably assign to ImageSails and agree to irrevocably assign to ImageSails 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 ImageSails’ request and expense, you will execute documents and take such further acts as ImageSails may reasonably request to assist ImageSails to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
Copyright Dispute Policy
ImageSails respects copyright law and expects its users to do the same. It is ImageSails’ policy to terminate in appropriate circumstances the ImageSails Accounts of Members or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see ImageSails’ Copyright Dispute Policy for further information.
Termination and ImageSails Account Cancellation
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 Services, and (b) deactivate or cancel your ImageSails Account. Upon termination we will promptly pay you any amounts we reasonably determine we owe you in our discretion, which we are legally obligated to pay you. In the event ImageSails terminates these Terms, or your access to our Services or deactivates or cancels your ImageSails Account you will remain liable for all amounts due hereunder. You may cancel your ImageSails Account at any time by contacting us via a support ticket. Please note that if your ImageSails Account is canceled, we do not have an obligation to delete or return to you any Content you have posted to the Site, Application and Services, including, but not limited to, any reviews or Feedback.
IF YOU CHOOSE TO USE THE SERVICES, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT ImageSails DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS ON ANY MEMBER, INCLUDING, BUT NOT LIMITED TO, RENTERS AND OWNERS, BUT MAY CONDUCT SUCH BACKGROUND CHECKS IN ITS SOLE DISCRETION. THE SERVICES, COLLECTIVE CONTENT ARE PROVIDED “ AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, IMAGESAILS EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. ImageSails MAKES NO WARRANTY THAT THE SERVICES, COLLECTIVE CONTENT, INCLUDING, BUT NOT LIMITED TO, THE LISTINGS OR ANY VesselS, WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. IMAGESAILS MAKES NO WARRANTY REGARDING THE QUALITY OF ANY LISTINGS, VesselS, THE SERVICES OR COLLECTIVE CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ImageSails OR THROUGH THE SERVICES 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 THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY OWNERS OR RENTERS. YOU UNDERSTAND THAT IMAGESAILS DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE, APPLICATION OR SERVICES OR TO REVIEW OR INSPECT ANY VesselS. IMAGESAILS MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE, APPLICATION OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE, APPLICATION OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, INCLUDING, BUT NOT LIMITED TO, RENTERS AND OWNERS, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON REGARDLESS OF WHETHER SUCH MEETINGS ARE ORGANIZED BY IMAGESAILS.
NOTWITHSTANDING ImageSails’ APPOINTMENT AS THE LIMITED AGENT OF THE OWNERS FOR THE PURPOSE OF ACCEPTING PAYMENTS FROM RENTERS ON BEHALF OF THE OWNERS, ImageSails EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY RENTER OR OTHER THIRD PARTY.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES AND COLLECTIVE CONTENT, YOUR LISTING OR BOOKING OF AND USE OF ANY VesselS VIA THE SERVICES, , AND ANY CONTACT YOU HAVE WITH OTHER USERS OF THE SERVICES WHETHER IN PERSON OR ONLINE REMAINS WITH YOU. NEITHER IMAGESAILS NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES, COLLECTIVE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, 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 THE SERVICES OR COLLECTIVE CONTENT, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, OR FROM YOUR LISTING, BOOKING, OR USE OF ANY Vessel VIA THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT IMAGESAILS 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.
EXCEPT FOR OUR OBLIGATIONS TO PAY AMOUNTS TO APPLICABLE OWNERS PURSUANT TO THESE TERMS, IN NO EVENT WILL IMAGESAILS’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SERVICES INCLUDING, BUT NOT LIMITED TO, FROM YOUR LISTING, BOOKING OR USE OF ANY Vessel VIA THE SERVICES, OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, OR COLLECTIVE CONTENT AND IN CONNECTION WITH ANY Vessel OR INTERACTIONS WITH ANY OTHER MEMBERS, EXCEED THE AMOUNTS YOU HAVE PAID FOR BOOKINGS VIA THE SITE, APPLICATION AND SERVICES AS A GUEST IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR IF YOU ARE AN OWNER, THE AMOUNTS PAID BY IMAGESAILS TO YOU IN THE TWELVE (12) 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 IMAGESAILS 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 ImageSails 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 the Services or Collective Content or your violation of these Terms; (b) your Member Content; (c) your (i) interaction with any Member, (ii) booking or use of a Vessel, (iii) creation of a Listing or (iv) the use, condition or rental of a Vessel 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 Vessel.
Export Control and Restricted Countries
By using the Services, you represent and warrant that (i) neither you nor your listed Vessel is located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “ terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons. ImageSails does not permit Listings associated with certain countries due to U.S. embargo restrictions.
If you interact with another user of the Services who you feel is acting or has acted inappropriately, including but not limited to, anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to ImageSails by contacting us with your police station and report number via a support ticket; provided that your report will not obligate us to take any action beyond that required by law (if any) or cause us to incur any liability to you.
These Terms constitute the entire and exclusive understanding and agreement between ImageSails and you regarding the Services, Collective Content, and any bookings or Listings of Vessels made via the Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between ImageSails and you regarding the foregoing.
You may not assign or transfer these Terms, by operation of law or otherwise, without ImageSails’ prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. ImageSails may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by ImageSails (i) via email (in each case to the address that you provide) or (ii) by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Controlling Law and Jurisdiction
These Terms will be interpreted in accordance with the laws of the State of California and the United States of America, without regard to its conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a state court located in San Francisco County, San Francisco, California or a United States District Court, Northern District of California located in San Francisco, California for any actions for which the parties retain 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, as set forth in the Dispute Resolution provision below.
You and ImageSails 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 the Services (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 ImageSails 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 ImageSails 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 and a separate form for California residents at http://adr.org/aaa/ShowPDF?doc=ADRSTG_004314.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California 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 ImageSails otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and ImageSails 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 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. ImageSails 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, ImageSails 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 ImageSails 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 (via a support ticket) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of ImageSails’ email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and ImageSails 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 ImageSails 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 ImageSails. 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.
If you have any questions about these Terms of Service, please contact ImageSails Support via a support ticket.
As used in this policy, the terms “using” and “processing” information include using cookies on a computer, subjecting the information to statistical or other analysis and using or handling information in any way, including, but not limited to collecting, storing, evaluating, modifying, deleting, using, combining, disclosing and transferring information within our organization or among our affiliates within the United States or internationally.
Information Collection and Use
Our primary goals in collecting information are to provide and improve our Site, Services, features and content, to administer your use of the Site and to enable users to enjoy and easily navigate the Site.
Personally Identifiable Information
When you register with us through the Services and become a Member, when you choose to post a Listing or rent a Vessel, or when you wish to contact another Member, we will ask you for personally identifiable information. This refers to information about you that can be used to contact or identify you (“Identity Information”). Identity Information includes, but is not limited to, your name, phone number, drivers license, email address, social security number (SSN), and home postal address, but does not include your credit card number or billing information. In order to process some of your transactions through the Services, we may also ask for your credit card number and other billing information (“Billing Information”) (Identity Information and Billing Information together, “Personal Information”). Some Personal Information is required, like your name and email address, and other Personal Information is optional, like your date of birth. We use your Personal Information to provide the Service and administer your inquiries.
We collect Personal Information in connection with your registration to join the Service. You can register to join via the Site or Application by completing the required forms.
You can also register to join by logging into online accounts you may have with third party service providers (“TPA”) (e.g. Facebook); each such account, a “Third Party Account”, via our Site or Application as described below. As part of the functionality of the Site, Service and Application, you may link your ImageSails Account with Third Party Accounts, by either: (i) providing your Third Party Account login information to ImageSails through the Site, Service or Application; or (ii) allowing ImageSails to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to ImageSails and/or grant ImageSails access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating ImageSails to pay any fees or making ImageSails subject to any usage limitations imposed by the applicable TPA. If you decide to register by logging into a Third Party Account via our Site or Application, we will obtain the Personal Information you have provided to the applicable TPA (such as your “real” name, email address, profile picture, names of TPA friends, names of TPA groups to which you belong, other information you make publicly available via the applicable TPA and/or other information you authorize ImageSails to access by authorizing the TPA to provide such information) from your Third Party Accounts and use that information to create your ImageSails Account and ImageSails Account profile page and you will become a Member. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, you understand that by granting us access to the Third Party Accounts, we will access, make available and store (if applicable and as permitted by the TPA and authorized by you) the information in your Third Party Accounts so that it is available on and through your ImageSails Account on the Site, Service and Application. If there is information about your “friends” or people with whom you are associated in your Third Party Account, the information we obtain about those “friends” or people with whom you are associated, may also depend on the privacy settings such people have with the applicable TPA.
We also collect the other information that you provide as part of registration and the administration and personalization of your ImageSails Account profile (e.g., without limitation, zip code (on its own) and individual preferences or demographic information) (“Non-Identifying Information”).
We use your Personal Information (in some cases, in conjunction with your Non-Identifying Information) mainly to provide the Service, complete your transactions, and administer your inquiries.
Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers (for example, combining your zip code with your street address) in a way that enables you to be identified. But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your demographic information). We may combine your Personal Information with Non-Identifying Information and aggregate it with information collected from other ImageSails Users (defined below) to attempt to provide you with a better experience, to improve the quality and value of the Service and to analyze and understand how our Services are used. We may also use the combined information without aggregating it to serve you specifically, for instance to deliver a product to you according to your preferences or restrictions.
We also use your Personal Information to contact you with ImageSails newsletters, marketing or promotional materials and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the unsubscribe instructions provided in any of the communications or update your “Notifications” information. (See “Changing or Deleting Information,” below.) We may also share the combined information without aggregating it to partners we feel may have material benefit to you or your use of the Site. Please note that we may also use your Personal Information to contact you with information related to your use of the Service, or services from Partners; you may not opt out of these notifications.
When you visit the Services, whether as a Member or a non-registered user just browsing (any of these, a “ImageSails User”), our servers automatically record information that your browser sends whenever you visit a website (“Log Data”). This Log Data may include information such as your computer’s Internet Protocol (“IP”) address, browser type or the webpage you were visiting before you came to our Services, pages or features of our Services that you visit or use, the time spent on those pages, information you search for on our Services, access times and dates, and other statistics. We use this information to monitor and analyze use of the Services and for the technical administration of the Services, to increase the functionality and user-friendliness of the Services, and to better tailor our Services to our visitors’ needs. We also use this information to verify that visitors to the Services meet the criteria required to process their requests. We do not treat Log Data as Personal Information or use it in association with other Personal Information, though we may aggregate, analyze and evaluate such information for the same purposes as stated above regarding other Non-Identifying Information.
Our Services may contain electronic images known as Web beacons (sometimes called single-pixel gifs) and are used along with cookies to compile aggregated statistics to analyze how our Services are used and may be used in some of our emails to let us know which emails and links have been opened by recipients. This allows us to gauge the effectiveness of our customer communications and marketing campaigns.
Emailing Via a ImageSails Account
As part of the Service, ImageSails Users may communicate with ImageSails Members through use of the “Contact Owner” feature on the Services. If the functionality exists for ImageSails Users to have selected the option of adding one or more email addresses to an online form, the message they create in the corresponding template will be sent from ImageSails to those email addresses on their behalf.
Identity theft and the practice currently known as “phishing” are of great concern to ImageSails. Safeguarding information to help protect you from identity theft is a top priority. We do not and will not, at any time, request your credit card information, your ImageSails Account ID, login password, or national identification numbers in a non-secure or unsolicited e-mail or telephone communication. For more information about phishing, visit the Federal Trade Commission’s website at http://www.ftc.gov.
Information Sharing and Disclosure
The Services can be used to facilitate the listing and booking of Vessels. Listings for such Vessels are made available via the Services by Owners. Listings posted by Owners, ratings and reviews of Owners and Renters, and the Profile Information (as defined below) of Owners and Renters, are visible to any ImageSails User.
ImageSails Members and Users
When you create a ImageSails Account, we will set up a ImageSails Account profile page for you. Your ImageSails Account profile page will include your first name and last initial and connections you have established between your Account and any TPAs, and a biography and links to your Listings. You can select the other items of Personal Information that you wish to be included in your ImageSails Account profile page – including, but not limited to, a profile picture, or, other information knows as your “Profile Information”. We will display your Profile Information in your ImageSails Account profile page publicly via the Services, and, with your prior permission, on third party sites. Any information you choose to provide as part of your Profile Information will be publicly visible to all ImageSails Users and consequently should reflect how much you want other ImageSails Users to know about you. We recommend that you guard your anonymity and sensitive information and we encourage members to think carefully about what information about themselves they disclose in their profile pages. You can review and revise your Profile Information at any time.
If you post a Listing, we may publish that Listing publicly via the Services and may enable third parties to publish your Listing on their websites through the use of an HTML “widget”. We may also display the geographical location of your Listing in the form of a map to potential Renters.
ImageSails retains the right to use any and all descriptions, depictions, and any other representations of you and your vessel in their advertising and marketing, whether online or physical, in any form, without limitation of design or content, without further notice, and without compensation of any kind. This includes monthly newsletters, specials, social media, and presence on the ImageSails websites.
If you request to make a booking via the Services, ImageSails will share the following information about you with the applicable Owner: (i) your first and last name, (ii) a link to your ImageSails Account profile page where the owner can view your Vesseling history, reviews, and description/links. All of this information will enable the Owner to decide whether to confirm or reject your booking. When an Owner confirms a booking we will share pieces of the Owner’s Identify Information, including, but not limited to, full name, phone number, the Vessel’s address and the Owner’s email address, with the applicable Renter selected by the Owner and we will share pieces of the Renter’s Identify Information with the Owner, including, but not limited to, full name, phone number and email address, so that the Renter and Owner may contact one another directly. In no event is a Renter’s Billing Information shared with an Owner.
Aggregate Information and Non-Identifying Information
We may share aggregated information that does not include Personal Information and we may otherwise disclose Non-Identifying Information and Log Data with third parties for industry analysis, demographic profiling and other purposes. Any aggregated information shared in these contexts will not contain your Personal Information.
We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Site and Application-related services (e.g., without limitation, maintenance services, database management, web analytics, fraud detection services relating to the activity of ImageSails Users and improvement of the features of the Service) or to assist us in analyzing how our Services are used. These third parties may have access to your Personal Information; if they do, this access is only so that they may perform these tasks on our behalf and they are obligated not to disclose or use it for any other purpose. We may also provide Personal Information to our business partners or other trusted entities for the purpose of providing you with information on goods or services we believe will be of interest to you. You can, at any time, opt out of receiving such communications.
Compliance with Laws and Law Enforcement
ImageSails cooperates with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose any information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), to protect the property and rights of ImageSails or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, any illegal, unethical or legally actionable activity.
We will disclose any information about you to government or law enforcement officials and to our insurance services providers as we, in our sole discretion, believe necessary or to protect the property and rights of ImageSails or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, any illegal, unethical or legally actionable activity.
ImageSails may sell, transfer or otherwise share some or all of its assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets or in the event of bankruptcy.
Changing or Deleting Your Information
All Members may review, update, correct or delete the Personal Information by editing the relevant part of their profile or by contacting us via a support ticket. If you would like us to cancel your ImageSails Account, please contact us via a support ticket and we will attempt to accommodate your request if we do not have any legal obligation or a legitimate business reason to retain the information contained in your ImageSails Account. Please note that, if you cancel your ImageSails Account, any reviews you have posted via the Services will remain publicly viewable via the Services. Please see below for privacy contact information.
ImageSails is very concerned with safeguarding your information. When you enter sensitive information (such as credit card number and/or social security number) on our registration or order forms, we encrypt that information using secure socket layer technology (SSL). We follow generally accepted industry standards to protect the Personal Information submitted to us, both during transmission and once we receive it. No method of transmission over the Internet, or method of electronic storage, is 100% secure, however. Therefore, we cannot guarantee its absolute security. If you have any questions about security on our Services, you can contact us via a support ticket.
We will make any legally required disclosures of any breach of the security, confidentiality, or integrity of your unencrypted electronically stored “personal data” (as defined in applicable state statutes on security breach notification) to you via email or conspicuous posting on the Services in the most expedient time possible and without unreasonable delay, insofar as consistent with (i) the legitimate needs of law enforcement or (ii) any measures necessary to determine the scope of the breach and restore the reasonable integrity of the data system.
Links to Other Websites
Our Services may contain links to other websites. If you choose to visit an advertiser by “clicking on” a banner ad or other type of advertisement, or click on another third party link, you will be directed to that third party’s website. The fact that we link to a website or present a banner ad or other type of advertisement is not an endorsement, authorization or representation of our affiliation with that third party, nor is it an endorsement of their privacy or information security policies or practices. We do not exercise control over third party websites. These other websites may place their own cookies or other files on your computer, collect data or solicit personal information from you. Other websites follow different rules regarding the use or disclosure of the personal information you submit to them. We encourage you to read the privacy policies or statements of the other websites you visit.
By agreeing to the Terms of Service we may post your testimonial or reviews on the Services along with your name. If you want your testimonial removed please contact us via a support ticket.
Our Policy Toward Children
The Site and Application are not directed to individuals under 21. We do not knowingly collect personally identifiable information from children under 13. If a parent or guardian becomes aware that his or her child has provided us with Personal Information without their consent, he or she should contact us. If we become aware that a child under 13 has provided us with Personal Information, please notify us via a support ticket so that we may delete such information from our files.
Access to your account
ImageSails will have the right to access your account to make any changes to reservations, listings, or profile information at its sole discretion.
4) Cancellation Policy
These terms and conditions govern the ImageSails Cancellation Policy (the “Cancellation Policy “) available to Renters and Owners through the ImageSails platform (the “Site”).
ImageSails has a standardized cancellation policy that we will enforce. Each party has the ability to cancel at any time. The fee schedule will be determined on when the cancellation occurs in relationship to the reservation dates.
- The ImageSails Service Fees are always non-refundable.
- Any reservation can be canceled 30 days or more prior to the rental start time in local time (LST) for a refund less applicable Service Fees.
- Cancellations within five (30) days before the start of a rental in local time (LST) are non-refundable.
Minimum Quality Standards & Owner Responsibilities
If you are an Owner, you are responsible for ensuring that the Vessels you list on the Services meet minimum quality standards regarding access, adequacy of the description on the Services, safety, cleanliness, and do not present a Renter with Travel Issues. During the 24-hour period following the Renter’s check-in, Owners should be available, or make a third-party available, in order to try, in good faith, to resolve Renter issues.
Vessel Owner Penalties
We reserve the right to penalize owners that cancel reservations or don’t meet minimum quality standards with the following penalties:
- Black out the dates of canceled reservations
- Apply fees equal to the Service Fees if there are more than one cancellation within a 6 month period
- Lower the ranking of the Vessel listing in search results
- Leave a review on the listing that the owner canceled a rental.
- General Provisions
No Assignment/No Insurance
This Cancellation Policy is not intended to constitute an offer to insure, does not constitute insurance or an insurance contract, does not take the place of insurance obtained or obtainable by the Renter, and the
Renter has not paid any premium in respect of the Cancellation Policy. The benefits provided under this Cancellation Policy are not assignable or transferable by you.
Modification or Termination
ImageSails reserves the right to modify or terminate this Cancellation Policy, at any time, in its sole discretion, and without prior notice. If ImageSails modifies this Cancellation Policy, we will post the modification on the Site or provide you with notice of the modification and ImageSails will continue to process all pending refunds/disputes made prior to the effective date of the modification.
Entire Agreement and Definitions
This Cancellation Policy constitutes the entire and exclusive understanding and agreement between ImageSails and you regarding the Cancelation Policy and supersedes and replaces any and all prior oral or written understandings or agreements between ImageSails and you regarding the Cancellation Policy. Capitalized terms not otherwise defined herein shall have the meaning set forth in the ImageSails Terms of Service.
This Cancellation Policy will be interpreted in accordance with the laws of the State of California and the United States of America, without regard to its conflict-of-law provisions.
Limitation of Liability
IN NO EVENT WILL ImageSails’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS ImageSails POLICY TERMS, EXCEED THE AMOUNT OF THE VESSEL FEES COLLECTED BY ImageSails FROM THE RENTER. 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 ACKNOWLEDGE AND AGREE THAT, BY POSTING A LISTING OR BOOKING A VESSEL OR OTHERWISE USING THE SERVICES AS AN OWNER OR RENTER, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE POLICY TERMS.
If you have any questions about the Cancellation Policy, please contact ImageSails via a support ticket.
5) Fee Policy
The following is an explanation of all current fees assessed by ImageSails. Failure to charge any of the below fees does not constitute a waiver of the right to exercise the same in the event another fee should become due at any other time. Any and all fees are subject to change without notice.
A service fee is required of both renters and owners. A 20% service fee charged on each rental. The 20% fee is applied to the price before any coupons or credits are applied to the final bill and is non-refundable.
VESSEL OWNER FEES
P2P AND CHARTER
20% fee per rental.
ImageSails charges processing fees on any additional payments processed on behalf of the owner or renter. This includes fuel, damage/security deposit payments, or other miscellaneous charges. In 2017, the processing fee was 2.8% + $0.65 per charge. Processing fees may increase.
ImageSails reserves the right to charge an additional $40 administrative fee for various issues such as chargebacks, disputes, or late fees. This is determined on a case-by-case basis. Administrative fees may increase.
The fees listed below are related to any post-rental resolution between parties. Failure to charge any of the below fees shall not constitute a waiver of the right to exercise the same in the event another fee should become due at any other time.
If a renter returns a Vessel after the agreed rental period end time or arrives late to the start of the rental, they can be charged a late fee. This late fee is calculated by combining a one-time administrative fee of $40.00 plus the prorated hourly rental rate (based on the daily rental rate for the Vessel rented) plus applicable insurance charges. If the late return results in the disruption of another rental or if ImageSails needs to find the owner of the Vessel alternative transportation due to the late return, the renter will pay the full daily rate for every eight (8) hours the Vessel is late and an additional $100 administrative fee. ImageSails WILL deduct the standard Service Fees from any late fee charge.
OWNER NO-SHOW / VESSEL IN BAD CONDITION FEE
If the Vessel owner does not show up to meet the renter and make the Vessel available for the renter at the agreed upon rental start time or if the Vessel is in an unacceptable condition, ImageSails will treat this as an owner cancellation and can charge the owner up to $100 per no-show at their discretion.
In the case that the Owner’s fuel policy is not followed, ImageSails will charge the Renter for fuel replaced as well as the standard $30 administrative fee.
A minimum of $500 will be held for each rental as a security deposit. Owners reserve the right to charge higher deposits, which will be held on the renter’s credit card to cover any incidental damage or lost items. The credit card hold will be released 72 hours after the rental period ends if no dispute or claim has been filed. In the case a claim is filed by the owner, the security deposit will be captured and held until the claim is resolved. If ImageSails is unable to capture a security deposit before the rental, the rental can be canceled.
For any claim event, the renter’s security deposit will be captured to pay the insurance deductible, damages, and fees. Any portions of the security deposit that are unused will be refunded back to the Renter at the resolution of the claims process.
*Service fees and commissions are subject to change at any time.
ImageSails reserves the right to charge a $15 chargeback fee to both the renter and owner depending on the type of chargeback. Additionally, owners are 100% responsible for any amount disputed or charged back. When a chargeback occurs ImageSails will stop payout on a rental until the chargeback is resolved. In the situation that an owner has already received a payout related to a chargeback, ImageSails will charge the owners bank account for the chargeback amount and hold that amount in escrow until the chargeback is adjudicated. If the chargeback is won, ImageSails will return the amount back to the owner, less a $15 administrative fee. If the chargeback is lost, the money will not be returned and used to issue a refund. In this case, both ImageSails and the owner lose which makes being diligent on checking for fraudulent renters even more important.
U.S. Patent Numbers US 10,196,119 B2 and US 10,618,618 B2, and internationally patent-pending.
Registered Trademark: ImageSails®
Registered Trademarks: The Art of Sailing®, Let Your Imagination Sail®
Trademarks: SailDraftTM, Image Really Is EverythingTM, Raise Your StandardsTM, Imagine EverythingTM, Everything You ImagineTM