Booking cancellation policy
A host will have chosen one of these six cancellation policies:
- Super Flexible – If you cancel anytime before your check in day and time, you’ll receive a full refund (minus TroutNow fees).
- Flexible – If you cancel at least 24 hours before your check in day and time, you’ll receive a full refund (minus TroutNow fees). If you cancel less than 24 hours before check in, there will be no refund.
- Moderate – If you cancel at least 3 days before your check in day and time, you’ll receive a full refund (minus TroutNow fees). If you cancel within the 3 days before check in, there will be no refund.
- Strict – If you cancel at least 1 week before your check in day and time, you’ll receive a full refund (minus TroutNow fees). If you cancel within the 1 week before check in, there will be no refund.
- Super Strict – If you cancel at least 1 week before your check in day and time, you’ll receive a 50% refund (minus TroutNow fees). If you cancel within 1 week before check in, there will be no refund.
- Super Strict (30 days) – If you cancel at least 30 days before your check in day and time, you’ll receive a 50% refund (minus TroutNow fees). If you cancel within 30 days before check in, there will be no refund.
The cancellation policy the host has selected will appear in the ‘Details’ section of their listing. You will also see it again, and be asked to agree to it, right before confirming your booking or booking request.
The cancellation policy corresponds to the ‘check in’ time the host has selected. For example, if their ‘check in after’ time is 2pm and they have a Flexible Cancellation Policy, you will get a full refund if you cancel before 2pm the day before. If you cancel at 5pm the day before your check in, there will be no refund.
Legacy Cancellation Policy, applied to any bookings made before October 17th, 2016
Cancellations can be made by contacting firstname.lastname@example.org. There is an angler service fee and a $10 cancellation fee, unless you are canceling after 2pm the day prior to your arrival, in which case there is additional forfeiture of your first night’s fee.
Cancellation policies may be superseded by extenuating circumstances or cancellations by TroutNow for any other reason permitted under the Terms of Service.
Last Updated Date: April 6, 2016
- OUR SYSTEM.
Overview. We provide the Website and Services as an online network and service to provide individuals seeking trout stream access information and reservations (“Anglers”) with resources about fishing, fishing stream access sites, and other land (“Property”). We enable Anglers to make reservations for short-term access (“Booking”) on Property with landowners who have created Listings for such Property (each, a “Landowner”). Our Users include Anglers and Landowners.
Our Role. TROUTNOW IS NOT A REAL ESTATE BROKER, REAL ESTATE SALESPERSON, INSURER, OR REAL ESTATE AGENT. TROUTNOW HAS NO CONTROL OVER THE CONDUCT OF LANDOWNERS, CAMPERS, OR OTHER USERS OF THE WEBSITE AND SERVICES OR ANY PROPERTY OR OTHER THIRD PARTY. We are not an owner, operator, or provider of any Property, nor do we manage and/or control Properties or transportation or travel services .
Booking Property. In some cases, we redirect you to a third-party website for you to book Property. In such event, Section 1.1 will not apply and we have no involvement in any such booking (but the provisions of Section 9 below will apply). In situations where you, as an Angler, have the ability to book a Property on our Website, we refer to such booking as a “Booking”. However, any Booking is directly between the Angler and entity that owns or manages such Property; we are not a party to such Booking or any transaction or agreement related thereto.
Disclaimer. By using the Website or Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Users or other third parties will be limited to a claim against the particular Users or other third parties who caused you harm. You agree not to attempt to impose liability on or seek any legal remedy from TroutNow with respect to such actions or omissions. Accordingly, we encourage you to communicate directly with other Users regarding any Listings (defined below), or potential or actual Bookings. The foregoing limitation shall not apply to any claim by a Landowner against us regarding the remittance of payments received from an Angler by TroutNow on behalf of a Landowner.
- For Anglers. The following terms apply only to Users in their role as an Angler:
Bookings. In Bookings, TroutNow acts solely as a technology service that facilitates communication and is not a party to any transaction between Anglers and Landowners. Pricing is set by the applicable Landowner. You acknowledge and agree that you, and not TroutNow, will be responsible for performing the obligations of any agreement you may have with a Landowner, that TroutNow is not a party to such agreements, and that, with the exception of its payment obligations hereunder, TroutNow disclaims all liability arising from or related to any such agreements.
When we provide Bookings, our responsibilities are limited to: (i) facilitating the availability of the Website and Services and (ii) serving as the limited payment collection agent of Landowners for the purpose of accepting payments from Anglers on behalf of the Landowners of such amounts stipulated by the Landowners.
In the event that a Landowner claims otherwise and provides evidence of damage, including but not limited to photographs, you agree to pay the cost of replacing the damaged items or property with equivalent items.
After being notified of the claim and given forty eight (48) hours to respond, the payment will be charged to and taken from the credit card on file in your Account. If we are unable to charge the credit card on file or otherwise collect payment from you, you agree to remit payment for any damage to the Property to the applicable Landowner or to TroutNow (if applicable). Both Anglers and Landowners agree to cooperate with and assist TroutNow in good faith, and to provide TroutNow with such information and take such actions as may be reasonably requested by TroutNow, in connection with any complaints or claims made by Landowners.
If you are an Angler, upon TroutNow’s reasonable request, and to the extent you are reasonably able to do so, you agree to participate in mediation or similar resolution process with a Landowner, at no cost to you, which process will be conducted by TroutNow or a third party selected by TroutNow, with respect to losses for which the Landowner is requesting payment from TroutNow.
Property Terms and Conditions. As an Angler, you will comply with all applicable Property Rules and Regulations, and laws, rules, regulations, and local ordinances, which are Supplemental Terms for any Booking you make. Use of any Property will be subject to: (i) availability of the Property; (ii) payment of all fees and charges incurred in reserving and/or using the Property; and (iii) compliance with the terms and conditions and/or Property Rules. Unless otherwise agreed in writing, settlement of all fees and charges incurred in reserving and/or using the Property is to be made by you prior to your use and shall not be considered guaranteed until written confirmation has been provided to you. You understand that a violation of Property Rules may result in cancellation of your Booking(s), in your being denied access to any Booking, or in your forfeiting any monies paid for such reservation(s). You hereby authorize us to debit or charge your account (via the method of payment associated with your account) for any costs we incur as a result of such violation (including any property damage or physical injury you cause).
Damage to Property. As an Angler, you are responsible for leaving the Property in the condition it was in when you arrived. You acknowledge and agree that, as an Angler, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals whom you invite to, or otherwise provide access to, the Property. You agree that we are authorized to immediately charge your Account for all fees and charges due and payable to TroutNow hereunder and that no additional notice or consent is required.
Insurance. As an Angler, you understand that TroutNow may provide primary liability insurance for Approved Landowners (as defined below) and that you will not look to an Approved Landowner’s policy for coverage in accordance with TroutNow’s policies. TroutNow will provide certain liability insurance and protection against property damage for the Landowners as described in these Terms and in the TroutNow Insurance Policy and Property Protection Plan. You are fully responsible for paying any damages not covered by our insurance, as well as insurance deductibles, fees, expenses, liens and fines arising out of your use or occupation of the Property.
Promotions. From time to time, we may elect to run or otherwise make available promotional offers, deals and/or codes for Property. Unless otherwise indicated on the Website, we may establish and modify, in our sole discretion, the terms of such offer and suspend or end such offer at any point, with or without notice to you. We reserve the right, in our sole discretion, to reject or refuse to honor any special deal or promotional code you submit to, or otherwise attempt to redeem on, the Website or Services. Promotional codes are generally limited to one use per customer. We may post additional terms of a promotion on the Website.
- For Landowners. If you are a Landowner, the following provisions apply to you:
Listings. If you wish to list a Property as a Landowner, you may create a listing of that Property by answering a variety of questions about it and providing the Property Rules and pricing (“Listing”). Listings are made publicly available on our Website. You acknowledge and agree that you are responsible for any and all Listings you post. We reserve the right, at any time and without prior notice, to remove or disable access to any Listing for any reason.
Compliance. YOU SHOULD UNDERSTAND HOW THE LAWS WORK IN THE JURISDICTION OF YOUR PROPERTY. SOME JURISDICTIONS REQUIRE REGISTRATION AND CERTAIN LICENSING AND PERMITS. YOU ARE SOLELY RESPONSIBLE FOR ALL SUCH COMPLIANCE. You represent and warrant that any Listing you post and any subsequent Booking (and use) of a Property: (i) will not breach any agreements you have entered into with any third parties, such as lease or rental agreements, and (ii) will (a) be in compliance with all applicable laws, tax requirements, and rules and regulations that may apply to any Property (including having all required permits, licenses and registrations), and (b) not conflict with the rights of third parties. Please note that TroutNow assumes no responsibility for any compliance with any agreements with or duties to third parties, applicable laws, rules and regulations. PLEASE REVIEW LOCAL LAWS BEFORE LISTING A PROPERTY.
Insurance. Any agreement you enter into with an Angler is between you and the Angler and we are not a party thereto. You understand and agree that TroutNow will provide certain liability insurance for Approved Landowners (as defined below) and protection against property damage as described in our TroutNow Insurance Policy and Property Protection Plan insurance policies. If you, as a Approved Landowner discover damage to your Property, you must report it immediately to email@example.com. However, TroutNow’s insurance policies do not cover all types of physical damage losses on your Property. Accordingly, we recommend you obtain appropriate insurance for your Property. Please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Anglers on your Property and any injuries to such Anglers.
Approved Landowners. In order to be eligible for and to benefit from TroutNow’s Insurance Policy as a Landowner you must comply with the following “Insurance Requirements”: You must: (1) be a registered and approved user of TroutNow platform; (2) not be a Commercial Fishing Outfit; (3) never have been convicted of a felony; (4) not have had any Homeowners / Renters Liability claims made against you in during the 3 year period immediately preceding the event(s) giving rise to an insurance claim hereunder; and (5) at all times comply with all applicable laws, rules, regulations, and ordinances, including any local laws and ordinances related to your Property, as well as these Terms. By making any claim hereunder, you represent and warrant that you have at all times complied with the Insurance Requirements.
Availability. You can set your own schedule of availability for your Property. You can accept or reject prospective bookings through the Services or in other communications with us. However, once an Angler makes a booking request, you may not request the Angler to pay a higher price than in the booking request on the Website. Once you accept a Booking or receive a Booking through Direct Book, you agree to fulfill that commitment to us and to the Angler and you may not charge any User additional or supplemental fees for the Booking (other than required taxes). We may make tools available to you to help you to make informed decisions about which Anglers you choose to confirm for booking for your Property, but you acknowledge and agree that, as a Landowner, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who are otherwise present on the Property at your request or invitation, excluding the Angler and his or her invited guests.
- Relationship with Landowners. Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employer-employee relationship between TroutNow and you. You will take no position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving TroutNow that is inconsistent with your being an independent contractor (and not an employee) of TroutNow. You are not the agent of TroutNow and you are not authorized, and must not represent to any third party that you are authorized, to make any commitment or otherwise act on behalf of TroutNow. Without limiting the generality of the foregoing:
You are not entitled to or eligible for any benefits that TroutNow may make available to its employees, such as group insurance, profit-sharing or retirement benefits. Because you are an independent contractor, TroutNow will not withhold or make payments for social security or payroll taxes of any kind, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on your behalf, nor will you be entitled to any of the foregoing. If, notwithstanding the foregoing, you are reclassified as an employee of TroutNow, or any affiliate of TroutNow, by the U.S. Internal Revenue Service, the U.S. Department of Labor, or any other federal, state or foreign agency as the result of any administrative or judicial proceeding, you agree that you will not, as the result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by TroutNow. In addition, you waive any and all rights, if any, to participation in any of the fringe benefit plans or programs including, but not limited to, health, sickness, accident or dental coverage, life insurance, disability benefits, severance, accidental death and dismemberment coverage, unemployment insurance coverage, workers’ compensation coverage, and pension or 401(k) benefit(s) provided by TroutNow to its employees.
You are solely responsible for filing all tax returns and submitting all payments as required by any federal, state, local, or foreign tax authority arising from payments to you under this Agreement, and you agree to do so in a timely manner. If applicable, TroutNow will report the payments paid to you under this Agreement by filing Form 1099-MISC with the Internal Revenue Service as required by law. You will comply with all applicable federal, state, local, and foreign laws governing self-employed individuals, including laws requiring the payment of taxes, such as income and employment taxes, and social security, disability and other contributions.
- Use of the Services and TroutNow Materials. The Website, the Services, the Application, and the information and content available on the Website and in the Services (as these terms are defined below) (collectively, the “TroutNow Materials”) are protected by copyright laws throughout the world. Subject to the Terms, TroutNow grants you a limited license to reproduce portions of the TroutNow Materials for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by TroutNow in a separate license, your right to use any TroutNow Materials is subject to the Terms.
- Updates. You understand that the TroutNow Materials are evolving. As a result, TroutNow may require you to accept updates to the TroutNow Materials that you have installed on your computer or mobile device. You acknowledge and agree that TroutNow may update the TroutNow Materials with or without notifying you. You may need to update third-party software from time to time in order to use the TroutNow Materials.
- Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the TroutNow Materials or any portion of the TroutNow Materials, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other TroutNow Materials (including images, text, page layout or form) of TroutNow; (c) you shall not use any metatags or other “hidden text” using TroutNow’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the TroutNow Materials except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) access the TroutNow Materials in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the TroutNow Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the TroutNow Materials. Any future release, update or other addition to the TroutNow Materials shall be subject to the Terms. TroutNow, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the TroutNow Materials terminates the licenses granted by TroutNow pursuant to the Terms.
- Third-Party Materials. As a part of the TroutNow Materials, you may have access to materials that are hosted by another party. You agree that it is impossible for TroutNow to monitor such materials and that you access these materials at your own risk.
- Registering Your Account. In order to access certain features of the TroutNow Materials you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account on the Website (“Account”).
- Access Through a SNS. We may enable you to link your Account with a valid account on a social networking service (“SNS” and each such account, a “Third-Party Account”) by allowing TroutNow 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 grant TroutNow 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 TroutNow to pay any fees or making TroutNow subject to any usage limitations imposed by such third-party service providers. By granting TroutNow access to any Third-Party Accounts, you understand that TroutNow may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the TroutNow Materials (“Content”) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the TroutNow Materials via your Account. Unless otherwise specified in the Terms, all SNS Content shall be considered to be Your Content (as defined in Section 4.1) for all purposes of the 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 may be available on and through your Account on the TroutNow Materials. Please note that if a Third-Party Account or associated service becomes unavailable or TroutNow’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the TroutNow Materials. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time through the SNS. 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, AND TROUTNOW DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. TroutNow makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and TroutNow is not responsible for any SNS Content.
- Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the TroutNow Materials under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the TroutNow Materials by minors. You may not share your Account or password with anyone, and you agree to notify TroutNow immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, not current or incomplete, or TroutNow has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, TroutNow has the right to suspend or terminate your Account and refuse any and all current or future use of the TroutNow Materials (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. TroutNow reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the TroutNow Materials if you have been previously removed by TroutNow, or if you have been previously banned from any of the TroutNow Materials.
- Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the TroutNow Materials, including but not limited to, a mobile device that is suitable to connect with and use the TroutNow Materials, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the TroutNow Materials.
- Responsibility for Content.
- Types of Content. You acknowledge that all Content, including the TroutNow Materials, is the sole responsibility of the party from whom such Content originated. This means that you, and not TroutNow, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the TroutNow Materials (“Your Content”), and other Users of the TroutNow Materials, and not TroutNow, are similarly responsible for all Content they Make Available through the TroutNow Materials (“User Content”).
- No Obligation to Pre-Screen Content. You acknowledge that TroutNow has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although TroutNow reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that TroutNow pre-screens, refuses or removes any Content, you acknowledge that TroutNow will do so for TroutNow’s benefit, not yours. Without limiting the foregoing, TroutNow shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
- Storage. Unless expressly agreed to by TroutNow in writing elsewhere, TroutNow has no obligation to store any of Your Content that you Make Available on the TroutNow Materials. TroutNow has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the TroutNow Materials. You agree that TroutNow retains the right to create reasonable limits on TroutNow’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by TroutNow in its sole discretion.
- TroutNow Materials. Except with respect to Your Content and User Content, you agree that TroutNow and its suppliers own all rights, title and interest in the TroutNow Materials. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or the TroutNow Materials.
- Trademarks. TroutNow and other related graphics, logos, service marks and trade names used on or in connection with the TroutNow Materials or in connection with the Services are the trademarks of TroutNow and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the TroutNow Materials are the property of their respective owners.
- Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the TroutNow Materials.
- Your Content. TroutNow does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in the TroutNow Materials, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
- License to Your Content. Subject to any applicable account settings that you select, you grant TroutNow a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, publicly display, derive revenue or other remuneration from, and communicate to the public, Your Content (in whole or in part) and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right, including moral rights, that may exist in Your Content. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the TroutNow Materials, including workspaces. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not TroutNow, are responsible for all of Your Content that you Make Available on or in the TroutNow Materials.
- Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on the TroutNow Materials, you hereby expressly permit TroutNow to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
- Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of TroutNow.
- Your Profile. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter. You may not post or submit for print services a photograph of another person without that person’s permission.
- Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to TroutNow through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that TroutNow has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to TroutNow a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the TroutNow Materials.
- User Conduct.
- Commercial Activities. You agree that you will not, under any circumstances (except to the extent expressly authorized by the Terms): (a) reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of the TroutNow Materials (including your Account), or access to or use of the TroutNow Materials; or (b) upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation.
- Unauthorized Use or Access. You agree that you will not, under any circumstances:
- Interfere or attempt to interfere with the proper functioning of the TroutNow Materials or connect to or use the TroutNow Materials in any way not expressly permitted by the Terms;
- Systematically retrieve data or other content from our TroutNow Materials 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, spiders, or otherwise;
- Use, display, mirror or frame the TroutNow Materials, or any individual element within the TroutNow Materials, TroutNow’s name, any TroutNow trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without TroutNow’s express written consent;
- Use any unauthorized software that accesses, intercepts, “mines” or otherwise collects information from or through the TroutNow Materials or that is in transit from or to the TroutNow Materials, including, but not limited to, any software that reads areas of RAM or streams of network traffic used by the TroutNow Materials;
- Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a server or the TroutNow Materials, whether through the use of a network analyzer, packet sniffer or other device;
- Make any automated use of the TroutNow Materials, or take any action that imposes or may impose (in TroutNow’s sole discretion) an unreasonable or disproportionately large load on the infrastructure for the TroutNow Materials;
- Bypass any robot exclusion headers or other measures TroutNow takes to restrict access to the TroutNow Materials, or use any software, technology or device to send content or messages, scrape, spider or crawl the TroutNow Materials, or harvest or manipulate data;
- Use, facilitate, create, or maintain any unauthorized connection to the TroutNow Materials, including, but not limited to: (i) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the TroutNow Materials; or (ii) any connection using programs, tools or software not expressly approved by TroutNow;
- Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the TroutNow Materials, or to obtain any information from the TroutNow Materials;
- Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the TroutNow Materials;
- Upload, post, e-mail, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- Solicit or attempt to solicit personal information from other Users of the TroutNow Materials;
- Use the TroutNow Materials to collect, harvest, 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;
- Forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting, or in any way use the TroutNow Materials to send altered, deceptive or false source-identifying information; or
- Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including, but not limited to, clear GIFs, 1×1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
- General. In connection with your use of the TroutNow Materials, you shall not:
- Make Available any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; (v) infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights; or (vi) promotes illegal or harmful activities;
- Harm minors in any way;
- Impersonate any person or entity, including, but not limited to, TroutNow personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- Make available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
- Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
- Register for more than one Account or register for an Account on behalf of an individual other than yourself;
- Stalk or otherwise harass any other User of our TroutNow Materials; or
- Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
- Investigations. TroutNow may, but is not obligated to, monitor or review the TroutNow Materials and Content at any time. Without limiting the foregoing, TroutNow shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although TroutNow does not generally monitor user activity occurring in connection with the TroutNow Materials or Content, if TroutNow becomes aware of any possible violations by you of any provision of the Terms, TroutNow reserves the right to investigate such violations, and TroutNow may, at its sole discretion, immediately terminate your license to use the TroutNow Materials, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
- Interactions with Other Users.
- User Responsibility. You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Services; provided, however, that TroutNow reserves the right, but has no obligation, to intercede in such disputes. You agree that TroutNow will not be responsible for any liability incurred as the result of such interactions.
- Content Provided by Other Users. The TroutNow Materials may contain User Content provided by other Users. TroutNow is not responsible for and does not control User Content. TroutNow has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
- Third-Party Services. The TroutNow Materials may contain links to third-party websites (“Third-Party Websites”) and advertisements for third parties (collectively, “Third-Party Websites & Ads”). When you click on a link to a Third-Party Website or Ad, we will not warn you that you have left the TroutNow Materials and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under the control of TroutNow. TroutNow is not responsible for any Third-Party Websites & Ads. TroutNow provides these Third-Party Websites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites & Ads, or their products or services. You use all links in Third-Party Websites & Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
- Fees and Purchase Terms. There are no fees for browsing or using our Website.
- Bookings. However, if you make a Booking, you agree to pay any and all fees or charges associated with such Booking. We may charge a fee for the service we provide when you make a Booking through the Services. You also authorize TroutNow to charge your credit card in the event of damage caused at a Property in accordance with the Terms.
- Payment. We use a third party payment provider to process payments (“Stripe”). By submitting your payment information to or through our Payment Provider, you authorize us to charge the applicable payment method for your Booking and any related fees or charges. You represent that you will not use any credit card or other form of payment unless you have all necessary authorization to do so. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not the Terms to determine your rights and liabilities. You agree that we are authorized to immediately invoice your Account for all fees and charges due and payable to TroutNow hereunder (including any damage you cause at or to a Property) and that no additional notice, authorization, or consent is required. We reserve the right at any time to change our prices and billing methods, either immediately upon posting on the TroutNow Properties or by e-mail delivery to you.
- Landowners. In the event of Booking, we may act as the Landowner’s payment collection agent for the limited purpose of accepting payments from you on behalf of the Landowner.Payment processing services for Landowners are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these terms, or continuing to operate as a Landowner, 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 TroutNow enabling payment processing services through Stripe, you agree to provide TroutNow accurate and complete information about you and your business, and you authorize TroutNow to share it and transaction information related to your use of the payment processing services provided by Stripe.
- Disputes. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to either firstname.lastname@example.org or the following address: TroutNow, Inc., 1 Lombard St, Ste 303, San Francisco, CA 94111.
- Indemnification. You agree to indemnify and hold TroutNow, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “TroutNow Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the TroutNow Materials; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; (e) your violation of any applicable laws, rules or regulations; (f) your interaction with any User or booking of a Property; and (g) the use, condition or rental of a Property 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 Property. TroutNow reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with TroutNow in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the TroutNow Materials.
- Disclaimer of Warranties.
- As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE TROUTNOW MATERIALS IS AT YOUR SOLE RISK, AND THE TROUTNOW MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE TROUTNOW PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- The TROUTNOW PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE TROUTNOW MATERIALS OR ANY PROPERTY ACCESSED A RESULT OF YOUR USE OF THE TROUTNOW MATERIALS WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE TROUTNOW MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE TROUTNOW MATERIALS WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE TROUTNOW MATERIALS WILL BE CORRECTED.
- ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE TROUTNOW MATERIALS IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE TROUTNOW MATERIALS, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
- THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. TROUTNOW MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THEIR QUALITY, EFFECTIVENESS, AND REPUTATION.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TROUTNOW OR THROUGH THE TROUTNOW MATERIALS WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
- FROM TIME TO TIME, TROUTNOW MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT TROUTNOW’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
- No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT TROUTNOW PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD TROUTNOW PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING CAMPERS, LANDOWNERS, AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
- No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE TROUTNOW MATERIALS. YOU UNDERSTAND THAT TROUTNOW DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS, WHETHER CAMPERS OR LANDOWNERS. TROUTNOW MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE TROUTNOW MATERIALS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE TROUTNOW MATERIALS. PLEASE TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF OUR SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON. YOU ACKNOWLEDGE AND AGREE THAT TROUTNOW DOES NOT CONDUCT BACKGROUND CHECKS ON ANY USER.
- Limitation of Liability.
- Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE TROUTNOW PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE TROUTNOW MATERIALS OR ANY BOOKING, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT TROUTNOW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE TROUTNOW MATERIALS, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE TROUTNOW MATERIALS; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE TROUTNOW MATERIALS; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE TROUTNOW MATERIALS; OR (5) ANY OTHER MATTER RELATED TO THE TROUTNOW MATERIALS, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
- Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE TROUTNOW PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY TROUTNOW FROM YOU OR PAID BY TROUTNOW TO YOU IN THE THREE (3) MONTHS PRIOR TO THE DATE ON WHICH YOU FIRST ASSERT A CLAIM. IF YOU HAVE NOT PAID TROUTNOW ANY AMOUNTS IN SUCH PERIOD, TROUTNOW’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50.00).
- User Content. TROUTNOW PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
- Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TROUTNOW AND YOU.
- EXCLUSION OF DAMAGES. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- Procedure for Making Claims of Copyright Infringement. It is TroutNow’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to TroutNow by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the TroutNow Materials in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the TroutNow Materials of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for TroutNow’s Copyright Agent for notice of claims of copyright infringement is as follows: TroutNow, Inc., 1 Lombard St, Ste 303, San Francisco, CA 94111, Attn: Copyright Agent.
- Term and Termination.
- Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the TroutNow Materials, unless terminated earlier in accordance with the Terms.
- Prior Use. Notwithstanding the foregoing, if you used the TroutNow Materials prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the TroutNow Materials (whichever is earlier) and will remain in full force and effect while you use the TroutNow Materials, unless earlier terminated in accordance with the Terms.
- Termination of Services by TroutNow. TroutNow has the right to suspend or terminate any Services provided to you for any reason. You agree that all terminations for cause shall be made in TroutNow’s sole discretion and that TroutNow shall not be liable to you or any third party for any termination of your Account.
- Termination of Services by You. If you want to terminate the Services provided by TroutNow, you may do so by (a) notifying TroutNow at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to TroutNow’s address set forth below.
- Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. TroutNow will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
- Violations. If TroutNow becomes aware of any possible violations by you of the Terms, TroutNow reserves the right to investigate such violations. If, as a result of the investigation, TroutNow believes that criminal activity has occurred, TroutNow reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. TroutNow is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the TroutNow Materials, including Your Content, in TroutNow’s possession in connection with your use of the TroutNow Materials, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of TroutNow, its Users or the public, and all enforcement or other government officials, as TroutNow in its sole discretion believes to be necessary or appropriate.
- Breach. In the event that TroutNow determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the TroutNow Materials, TroutNow reserves the right to:
- Warn you via e-mail (to any e-mail address you have provided to TroutNow) that you have violated the Terms;
- Delete any of Your Content provided by you or your agent(s) to the TroutNow Materials;
- Discontinue your registration(s) with the any of the TroutNow Materials, including any Services or any TroutNow community;
- Discontinue your subscription to any Services;
- Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
- Pursue any other action which TroutNow deems to be appropriate.
- No Subsequent Registration. If your registration(s) with or ability to access the TroutNow Materials, or any other TroutNow community is discontinued by TroutNow due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the TroutNow Materials or any TroutNow community through use of a different username or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those TroutNow Materials to which your access has been terminated. In the event that you violate the immediately preceding sentence, TroutNow reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
- International Users. The TroutNow Materials can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that TroutNow intends to announce such Services or Content in your country. The TroutNow Materials are controlled and offered by TroutNow from its facilities in the United States of America. TroutNow makes no representations that the TroutNow Materials are appropriate or available for use in other locations. Those who access or use the TroutNow Materials from other jurisdictions do so at their own volition and are responsible for compliance with local law.
- General Provisions.
- Electronic Communications. The communications between you and TroutNow use electronic means, whether you visit the TroutNow Materials or send TroutNow e-mails, or whether TroutNow posts notices on the TroutNow Materials or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from TroutNow in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that TroutNow provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
- Release of TroutNow. You hereby release TroutNow Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the TroutNow Materials, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the TroutNow Materials. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
- Waiver against Landowners. AS A CAMPER, YOU HEREBY FREELY, VOLUNTARILY AND WITHOUT DURESS RELEASES LANDOWNER FROM LIABILITY UNDER THE FOLLOWING TERMS (THE “RELEASE”):
- Acknowledgement and Assumption of Risk. Angler acknowledges that fishing (the “Activity”) might cause injuries, death, property damage or other harm to third parties. Angler accepts and voluntarily incurs all risks of any such injuries, damages or harm which arise during or result from the Activity except only to the extent caused by the sole negligence or intentional misconduct of the Landowner or its agents and representatives.
- Waiver and Release. Angler waives releases and forever discharges all claims against the Landowner and its agents and representatives (hereinafter collectively “Released Parties”) for any injuries, damages, losses or claims, whether known and unknown, which arise during or result from the Activity, except only to the extent caused by the sole negligence or intentional misconduct of any of the Released Parties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
- Indemnification and Hold Harmless. Angler agrees to indemnify and hold the Released Parties harmless from all losses, liabilities, damages, costs or expenses (including but not limited to reasonable attorneys’ fees and other litigation costs and expenses) incurred by any of the Released Parties as a result of any claims or suits brought against any of the Released Parties to recover any losses, liabilities, costs, damages or expenses which arise during or result from the Activity, except only to the extent caused by the sole negligence or intentional misconduct of any of the Released Parties.
- Other. The Angler expressly agrees that this Release is intended to be as broad and inclusive as permitted by the laws of the State of California, and that this Release shall be governed by and interpreted in accordance with the laws of the State of California. Angler also agrees that in the event that any clause or provision of this Release shall be held to be invalid by any court of competent jurisdiction, the invalidity of such clause or provision shall not otherwise affect the remaining provisions of this Release which shall continue to be enforceable.
- Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without TroutNow’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Force Majeure. TroutNow shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Compliance. If you believe that TroutNow has not adhered to the Terms, please contact TroutNow by emailing us at email@example.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
- Limitations Period. YOU AND TROUTNOW AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE TROUTNOW MATERIALS OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with TroutNow and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
- Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by TroutNow that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and TroutNow, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
- Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to TroutNow should be sent to: firstname.lastname@example.org. After the Notice is received, you and TroutNow may attempt to resolve the claim or dispute informally. If you and TroutNow do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
- Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within one hundred (100) miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
- Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and TroutNow, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and TroutNow.
- Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and TroutNow in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND TROUTNOW WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with TroutNow.
- Small Claims Court. Notwithstanding the foregoing, either you or TroutNow may bring an individual action in small claims court.
- Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
- Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in California, for such purpose.
- Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
- Choice of Language. It is the express wish of the parties that the Terms and all related documents have been drawn up in English. C’est law volone expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
- Notice. Where TroutNow requires that you provide an e-mail address, you are responsible for providing TroutNow with your most current e-mail address. In the event that the last e-mail address you provided to TroutNow is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, TroutNow’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to TroutNow at the following address: 1 Lombard St, Suite 303 San Francisco CA 94111. Such notice shall be deemed given when received by TroutNow by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Export Control. You may not use, export, import, or transfer the TroutNow Materials except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the TroutNow Materials, and any other applicable laws. In particular, but without limitation, the TroutNow Materials may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the TroutNow Materials, you represent and warrant that (i) you are not 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 TroutNow Materials for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by TroutNow are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer TroutNow products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
- Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
- Mobile Applications. The following terms apply in the event we offer a mobile application.
- Application License. Subject to your compliance with the Terms, TroutNow grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of TroutNow’s software application for mobile devices (the “Application”) on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
- App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge that the Terms are between you and TroutNow and not with the App Store. TroutNow, not the App Store, is solely responsible for the TroutNow Materials, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the TroutNow Materials, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the TroutNow Materials, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
- Accessing and Download the Application from iTunes. The following applies to any App Store Sourced Application:
- You acknowledge and agree that (i) the Terms are concluded between you and TroutNow only, and not Apple, and (ii) TroutNow, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between TroutNow and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of TroutNow.
- You and TroutNow acknowledge that, as between TroutNow and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You and TroutNow acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between TroutNow and Apple, TroutNow, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
- You and TroutNow acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
- Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.