Terms of Service
Zephyr Boating is your friend to enjoy the water in a safe and affordable way
Updated February 12, 2020
Welcome to the website operated by Zephyr Inc. dba Zephyr Boating, a Delaware corporation (hereafter referred to as “Zephyr”, “we,” “us,” or “our”). These Terms of Service (hereafter, the “Terms”) govern your use of our website, including any subdomains thereof, and any other websites through which Zephyr makes its services available (collectively, the “Site”), our mobile, tablet and other smart device applications, and application program interfaces (collectively, the “Application”) and all associated services (collectively, the “Services”). The Site, Application and Services together are hereinafter collectively referred to as the “Zephyr Platform.”
By using this Site or our Applications, you agree to comply with and be legally bound by these Terms, whether or not you become a registered user of the Zephyr Platform. Please review these Terms carefully. If you do not agree to these Terms, you have no right to obtain information from or otherwise continue using any portion of the Zephyr Platform. Failure to use the Zephyr Platform in accordance with these Terms may subject you to severe civil and criminal penalties. We reserve the right to modify these Terms or other policies relating to the Zephyr Platform at any time, effective upon posting of an updated version of these Terms on the Site, and by using this Site, you agree that the posting of new or revised Terms on the Site will constitute adequate and constructive notice to you of any and all revisions and changes. Continued use of any portion of the Zephyr Platform after any such revisions and changes have been posted shall constitute your consent to such revisions and changes.
1. User Responsibilities
1.1 Neutral Venue. The Zephyr Platform is an online venue that facilitates reservations for use of watercraft between boat captains (“Captains”) and persons who wish to hire the services of such watercraft and their Captains (“Riders” and, together with Captains, “Users”). The Zephyr Platform is merely a venue for Users to learn about one another and, if they wish, reserve watercraft and captain services between one another. We are not involved in the actual face-to-face contact between Users. As a result, we have no control over the conduct of our Users or the truth or accuracy of the information that Users post on the Site.
1.2 Identity Verification. We make no attempt to confirm, and do not confirm, any User’s purported identity. You are responsible for determining the identity and suitability of others who you may contact by means of this Site. We do not endorse any persons who use or register for the Zephyr Platform, whether as Captains or Riders. We do not investigate any User’s reputation, conduct, morality, criminal background, or verify the information that any user submits to the Site.
1.3 Your Experience with Other Users. You are solely responsible for your interactions with other Users of the Zephyr Platform We will not be responsible for any damage or harm resulting from your interactions with other Users of the Zephyr Platform. We reserve the right, but have no obligation, to monitor interactions between you and other Users of the Zephyr Platform and to take any other action in good faith to restrict access to or the availability of any material that we or another User of the Zephyr Platform may consider obscene, lewd, lascivious, filthy, violent, harassing or otherwise objectionable.
1.4 Release. By using the Zephyr Platform, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Users will be limited to a claim against the particular User or Users who caused you harm. You agree not to attempt to impose liability on, or seek any legal remedy from Zephyr. You release Zephyr from any and all claims, judgments, damages (actual, consequential, nominal, punitive, or otherwise), penalties, fines, costs, liabilities, losses or expenses (including, without limitation, reasonable attorneys’ fees and expenses), equitable relief, and any other legal, equitable, and administrative remedy, of every kind and nature, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, past, present, or future, arising out of or in any way connected with your communication or interaction with other Users on the Zephyr Platform or your experience as a Captain or a Rider in connection with the Zephyr Platform.
2. User Conduct
2.1 Site Rules and Restrictions. In connection with your use of the Zephyr Platform, you agree to act responsibly and exercise good judgment. Without limiting the foregoing, you will not:
(a) violate any local, state, provincial, national, or other law or regulation, or any order of a court;
(b) infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights, including but not limited to subleasing a property without the rights to do so;
(c) interfere with or damage the Zephyr Platform, 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;
(d) use the Zephyr Platform 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;
(e) use the Zephyr Platform in connection with the distribution of unsolicited commercial e-mail (“spam”) or advertisements unrelated to lodging in a private residence;
(f) “stalk” or harass any other User of the Zephyr Platform or collect or store any information about any other User other than for purposes of transacting business as a Captain or Rider;
(g) register for more than one user account;
(h) impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
(i) use automated scripts to collect information or otherwise interact with the Zephyr Platform;
(j) use the site to find a Captain or Rider and then complete the transaction offline in order to circumvent your obligation to pay for the Services;
(k) submit any listing with a false or misleading price, or submit any listing with a price that you do not intend to honor; or
(l) advocate, encourage, or assist any third party in doing any of the foregoing. The foregoing is merely a list of examples of prohibited conduct. Zephyr reserves the right to cancel a user account or take other appropriate actions in its sole discretion in response to any inappropriate conduct, or for no reason at all.
2.2 Disputes with Other Users. You are solely responsible for your interactions with other Zephyr Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users.
2.3 Listing Prices. If you as a Captain posts a listing offering watercraft reservation through the Zephyr Platform which is accepted by you as a Captain and a Rider, you acknowledge and agree that the price you specify for that listing will constitute an essential part of a binding agreement between you and the Rider. You further agree not to alter the price once accepted.
2.4 Binding Contract. Submission of payment by the Rider initiates a binding contract between the Captain and the Rider. As a Captain, you agree that by offering a reservation to a Rider, you are representing that you will honor that reservation if the Rider accepts the reservation. In the event that you cannot honor the Rider’s reservation for any reason, Zephyr will refund the Rider’s payment in full.
3. Minors May Not Use Services
You must be at least 18 years old to register to use the Services. By registering to use the Zephyr Platform, you represent that you are over 18. IF YOU ARE UNDER 18, DO NOT USE THE ZEPHYR PLATFORM OR OUR SERVICES.
5. Your Content
5.1 You Grant Us a License. By submitting any content (including without limitation, any photograph, words, pictures, or symbols) to the Zephyr Platform, you hereby grant us a perpetual, worldwide, non-exclusive, royalty-free license to use, reproduce, display, perform, adapt, modify, sell, distribute, have distributed and promote such content in any form, in all media now known or hereinafter created. You represent and warrant that you have sufficient rights to grant us this license.
5.2 Content Restrictions. You are solely responsible for any content that you submit, post or transmit via the Zephyr Platform. You may not post or submit any content that:
(a) infringes the copyright, trademark, or other intellectual property rights of any person;
(b) is defamatory;
(c) contains nudity or sexually explicit content, or is otherwise obscene;
(d) may disparage any ethnic, racial, sexual, religious, or other group by stereotypical depiction or otherwise;
(e) depicts individuals under 18 years of age;
(f) depicts or advocates the use of illicit drugs;
(g) makes use of offensive language or images;
(h) characterizes violence as acceptable, glamorous or desirable; or
(i) provides a link to any other websites.
5.3 No Obligation to Post Content. We have no obligation to post any content from you or anyone else. In addition, we may, in our sole and unfettered discretion, edit, remove or delete any content that you post or submit.
6. Third-Party Content
In using the Zephyr Platform, you may be exposed to content and information from other Users or third parties (“Third-Party Content”), either on the Zephyr Platform or through links to third-party websites. We do not control, and shall have no responsibility for, Third-Party Content, including material that may be unlawful, misleading, incomplete, erroneous, offensive, indecent or otherwise objectionable. You must evaluate the veracity of, and bear all risks associated with your exposure to, Third-Party Content, including without limitation, profiles of other users of the Zephyr Platform.
7.1 Fee Structure. In exchange for providing the Services, Zephyr keeps a portion of the Captain’s price of each watercraft reservation. As a Rider, you agree to pay the amount posted by the Captain with whom you have chosen to journey. As a Captain, posting a listing is free, but you agree to pay Zephyr its then-current service charge for each Rider’s use of your watercraft.
7.2 Payment Logistics. In order to accept a reservation offered by a Captain, you as a Rider will be asked to submit payment information (including credit card information or bank account information and billing address). Upon submitting payment information and agreeing to the terms of rental, your account will be charged and your reservation will be confirmed. The funds will be held by Zephyr until you arrive; shortly thereafter, Zephyr will remit the held funds to the Captain, less Zephyr’s service charge. All funds are processed through a third party API, and Zephyr disclaims any liability for any error in processing funds by such third party.
7.3 Cancellation and Refunds. If you as a Rider cancel your reservation request, Zephyr will return the funds to you in accordance with the cancellation policy corresponding to the watercraft you reserved, as more particularly described on the booking page when you make your reservation[ and/or the Rider Agreement provided after booking].
7.4 Balance Due. If the remainder of the payment for a booking is not received in accordance with the payment schedule described on the Booking Page, Zephyr reserves the right to cancel the Rider’s reservation and refund the Rider the amount due in accordance with the cancellation policy for that property as more particularly described on the booking page and/or the Rider Agreement provided after booking.
7.5 Taxes. Zephyr does not do business as an owner, operator, or provider of watercraft. Zephyr does not act as an agent for any providers or Captains of watercraft. Zephyr merely facilitates reservations for watercraft use between Captains and Riders. Zephyr is not a contracting agent or representative of the Captain or the Rider. Instead, Zephyr’s role is solely to facilitate the availability of this venue for the Captain and the Rider and to provide Services related thereto, and any agreement for the use of any watercraft and accompanying services is solely between the Captain and the Rider, and not Zephyr. You understand that we are acting solely as an intermediary for the collection of rents and fees between Users who choose to enter into a transaction. Because state and local tax laws vary significantly by locality, you understand and agree that you are solely responsible for determining your own tax reporting requirements in consultation with tax advisors. We cannot and do not offer tax advice to either Captains or Riders.
8. Proprietary Rights
8.1 Our Intellectual Property. Material on our Site (with the exception of Third-Party Content) is protected by rights of publicity, copyright, trademark, trade secret, and other proprietary rights and intellectual property laws as applicable. Except as expressly authorized by us, you may not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such material. “Zephyr Boating” and ” https://zephyrboating.com” are trademarks of Zephyr protected by federal and state law; you agree not to use such marks for any purpose, including but not limited to as metatags on other websites, in written materials or otherwise.
8.2 Your Use of Our Intellectual Property. You may not systematically retrieve data or other content from our Site 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. You may not display any portion of our Site in a frame (or any content from our Site through in-line links) without our prior written consent, which may be requested by contacting us at firstname.lastname@example.org.
9. Username and Password
You will select a username and password as part of the registration process. You are solely responsible for the confidentiality and use of your username and password. You must: (a) log off from your account at the end of each session on our Site; and (b) notify us immediately of any unauthorized use of your username and password or any other breach of security.
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 your access to the Zephyr Platform; (b) deactivate or delete any of your accounts and all related information and files in such accounts; and (c) bar your access to any and all portions of the Zephyr Platform.
11. Modification of Services
We may, in our discretion and without liability to you, with or without prior notice and at any time, modify or discontinue, temporarily or permanently, any portion of the Zephyr Platform.
12. Legal Compliance
You shall use, and we shall operate, the Zephyr Platform in a manner consistent with any and all applicable local, state, national and international laws and regulations.
12.1 All Captains who use the Zephyr Platform must certify, and through the use of the Zephyr Platform hereby do certify,that they are in compliance with all federal, state, and local safety regulations and that they are operating as a legal charter in accordance with U.S. Coast Guard regulation and all similar laws affecting their operation. .
12.2 IN NO EVENT WILL ZEPHYR BE HELD RESPONSIBLE OR LIABLE FOR ANY VIOLATIONS OF ANY LAW BY ANY CAPTAIN OR RIDER IN CONJUNCTION WITH THEIR USE OF THE ZEPHYR PLATFORM.
13. Disclaimer of Warranties
13.1 IF YOU USE OUR SERVICES, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT ZEPHYR DOES NOT CHECK ANY TRAVELER, OWNER, OR OTHER USER’S BACKGROUND OR RECORD. USE COMMON SENSE. BE AWARE AND BE SAFE. THE ZEPHYR PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM, AND YOU WAIVE, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
13.2 WE DO NOT WARRANT THAT (A) THE ZEPHYR PLATFORM WILL MEET YOUR REQUIREMENTS; (B) USE OF THE ZEPHYR PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) ANY INFORMATION THAT YOU MAY OBTAIN THROUGH THE ZEPHYR PLATFORM WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE ZEPHYR PLATFORM WILL MEET YOUR EXPECTATIONS; OR (E) ANY ERRORS IN ANY DATA OR SOFTWARE WILL BE CORRECTED.
13.3 IF YOU ACCESS OR TRANSMIT ANY CONTENT THROUGH THE USE OF THE ZEPHYR PLATFORM, YOU DO SO AT YOUR OWN DISCRETION AND YOUR SOLE RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE ARISING OUT OF SUCH ACCESS OR TRANSMISSION.
13.4 NO DATA, INFORMATION OR ADVICE OBTAINED BY YOU IN ORAL OR WRITTEN FORM FROM US OR THROUGH OR FROM THE ZEPHYR PLATFORM WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
14. Limits of Liability
14.1 WE SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INCIDENTAL, GENERAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES) EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM OR RELATING TO: (A) THE USE OR INABILITY TO USE THE ZEPHYR PLATFORM; (B) HARM OR DAMAGE TO YOUR PROPERTY AS A RESULT OF USING THE ZEPHYR PLATFORM; (C) DISCLOSURE OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT; (D) ANY HARM TO YOU CAUSED IN WHOLE OR PART BY A THIRD PARTY, INCLUDING BUT NOT LIMITED TO ANOTHER USER OF THE ZEPHYR PLATFORM; (E) STATEMENTS, CONDUCT OR OMISSIONS OF ANY GUEST, OWNER, OR OTHER THIRD PARTIES ON THE ZEPHYR PLATFORM; OR (F) YOUR OR ANYONE ELSE’S CONDUCT OR ACTS IN CONNECTION WITH THE USE OF THE ZEPHYR PLATFORM, INCLUDING WITHOUT LIMITATION FROM INTERACTIONS WITH OTHER USERS OF THE ZEPHYR PLATFORM OR PERSONS INTRODUCED TO YOU BY THE ZEPHYR PLATFORM, WHETHER ON-LINE OR OFF-LINE.
14.2 WE SHALL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMING UNDER THESE TERMS DUE TO CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ACTS OF NATURE AND POWER, INTERNET, AND EMAIL DISCONTINUITY.
14.3 IN NO EVENT WILL OUR AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY MATTER ARISING FROM OR RELATING TO WITH OUR SERVICES OR THESE TERMS EXCEED THE SUM OF ONE HUNDRED U.S. DOLLARS ($100).
You shall indemnify, defend, and hold us (and each of our officers, directors, managers, members, agents and employees) harmless from any and all third-party claims, judgments, damages (actual, consequential, nominal, punitive, or otherwise), penalties, fines, costs, liabilities, losses or expenses (including, without limitation, reasonable attorneys’ fees and expenses) incurred without gross negligence or willful misconduct, arising out or relating to your use of the Zephyr Platform or alleging facts or circumstances that, if true, could constitute your breach of any of these Terms. You will further indemnify Zephyr for your breach of any laws applicable to your activities. We will control any such defense and related settlement and you will reasonably assist us therewith at your expense.
16. Jurisdiction and Venue
These Terms shall be interpreted in accordance with the laws of the State of Colorado and the United States of America, without regard to conflict-of-law principles. You and we agree to submit to the exclusive personal jurisdiction of a state district court located in Denver County, Denver, Colorado or a United States District Court in Denver, Colorado. Any action brought against Zephyr shall be venued exclusively in either Denver District Court, Denver, Colorado or the United States District Court, Denver, Colorado.
If a dispute arises between you and us regarding the respective rights or obligations under these Terms, you and we agree to first attempt to settle each such dispute by direct discussions. You must provide written notice to us of any such dispute by either (a) emailing us at email@example.com, or (b) by mailing us notice at firstname.lastname@example.org. If such dispute cannot be settled by direct discussions, any unresolved dispute or breach will be resolved as provided above and by law. The prevailing or non-dismissing party in any dispute, litigation, or cause of action related to these Terms will be entitled to reimbursement of all reasonable expenses, including without limitation court or arbitration or mediation costs and attorney fees incurred in good faith.
These Terms contain the entire agreement and supersede all prior and contemporaneous understandings between the parties, relating to the Zephyr Platform. Our failure or delay in exercising any right, power or privilege under these Terms shall not operate as a waiver thereof. The invalidity or unenforceability of any of these Terms shall not affect the validity or enforceability of any other of these Terms, all of which shall remain in full force and effect. We may assign our rights and delegate our obligations under these Terms in whole or part to a third party. Headings of sections are for convenience only and shall not be used to limit or construe such sections. Sections 1.4 (Release), 4 (Privacy), 5.1 (License), 6 (Third-Party Content), 7 (Payment), 8 (Proprietary Rights), 14 (Limits on Liability), 15 (Indemnity), 16 (Jurisdiction and Venue), 17 (Disputes), and this Section 18 (Miscellaneous) shall survive any termination or expiration of these Terms.
Please contact us at email@example.com with any questions regarding these Terms.
Your continued use of the Zephyr Platform and registration to use any portion of the Zephyr Platform is contingent upon your agreement to be bound by the foregoing Terms.