Terms of Use

Last modified: 11/04/2020

1. contractual Relationship

These Terms of Use (“Terms”) govern your access or use, from within the United States and its territories and possessions, of the applications, websites, content, products, and services (the “Services,” as more fully defined below in Section 3) made available in the United States and its territories and possessions by Onyx Elevated Experiences, LLC and its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, “Onyx”). PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND Onyx. In these Terms, the words “including” and “include” mean “including, but not limited to.”

By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services.

These Terms expressly supersede prior agreements or arrangements with you. Onyx may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason. IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH Onyx ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.

Supplemental terms may apply to certain Services, such as policies for a particular event, program, activity or promotion, and such supplemental terms will be disclosed to you in separate region-specific disclosures (e.g., a particular city webpage on Sailsailonyx.com) or in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.

Onyx may amend the Terms from time to time. Amendments will be effective upon Onyx’s posting of such updated Terms at this location or in the amended policies or
supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended. If Onyx changes these Terms after the date you first agreed to the Terms (or to any subsequent changes to these Terms), you may reject any such change by providing Onyx written notice of such rejection within 30 days of the date such change became effective, as indicated in the “Effective” date above. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process, c/o Onyx Elevated Experiences, LLC (the name and current contact information for the registered agent in each state are available online here), or (b) by email from the email address associated with your Account to: change- [email protected]. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to these Terms. By rejecting changes, you are agreeing that you will continue to be bound by the provisions of these Terms as of the date you first agreed to the Terms (or to any subsequent changes to these Terms).

Onyx’s collection and use of personal information in connection with the Services is described in Onyx’s Privacy Statements located at https://www.sailonyx.com/privacy- guarantee.

2. Arbitration Agreement

By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against Onyx on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against Onyx, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Onyx by someone else. Agreement to Binding Arbitration Between You and Onyx.

You and Onyx agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and Onyx, and not in a court of law. Notwithstanding the foregoing, where you allege claims of sexual assault or sexual harassment occurring in connection with your use of the Services, you may elect to bring those claims in a court of competent jurisdiction instead of arbitration. Onyx agrees to honor your election of forum with respect to your individual sexual assault or sexual harassment claim but in so doing does not waive the enforceability of this Arbitration Agreement as to any other provision (including, but not limited to, the waivers provided in the following paragraph, which will continue to apply in court and arbitration), controversy, claim or dispute.

You acknowledge and agree that you and Onyx are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and Onyx otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and Onyx each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property right

Rules and Governing Law

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.

The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.

Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Florida.

Process

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration – Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of Florida and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.

Location and Procedure

Unless you and Onyx otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Onyx submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision

The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Onyx will not seek, and hereby waives all rights Onyx may have under applicable law to recover attorneys’ fees and expenses if Onyx prevails in arbitration.

Fee’s

Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.

Changes

Notwithstanding the provisions in Section I above, regarding consent to be bound by amendments to these Terms, if Onyx changes this Arbitration Agreement after the date you first agreed to the Terms (or to any subsequent changes to the Terms), you may reject any such change by providing Onyx written notice of such rejection within 30 days of the date such change became effective, as indicated in the “Effective” date above. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process, c/o Onyx Elevated Experiences, LLC (the name and current contact information for the registered agent in each state are available online here), or (b) by email from the email address associated with your Account to: change- [email protected]. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and Onyx in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).

Severability and Survival

If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.

3. The Services

The Services comprise web and mobile applications and related services (each, an “Application”), which enable users to arrange and schedule crew, logistics and/or delivery services and/or to purchase certain goods, including with third party providers of such services and goods under agreement with Onyx or certain of Onyx’s affiliates (“Third Party Providers”). In certain instances the Services may also include an option to receive transportation, logistics and/or delivery services for an upfront price, subject to acceptance by the respective Third Party Providers. Unless otherwise agreed by Onyx in a separate written agreement with you, the Services are made available solely for your personal, noncommercial use. YOU ACKNOWLEDGE THAT YOUR ABILITY TO OBTAIN TRANSPORTATION, LOGISTICS AND/OR DELIVERY SERVICES THROUGH THE USE OF THE SERVICES DOES NOT ESTABLISH Onyx AS A PROVIDER OF TRANSPORTATION, LOGISTICS OR DELIVERY SERVICES OR AS A TRANSPORTATION CARRIER.

License

Subject to your compliance with these Terms, Onyx grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by Onyx and Onyx’s licensors.

Restrictions

You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Onyx; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.

Third Party Services and Content

The Services may be made available or accessed in connection with third party services and content (including advertising) that Onyx does not control. You acknowledge that different terms of use and privacy policies may apply to your use of such third party services and content. Onyx does not endorse such third party services and content and in no event shall Onyx be responsible or liable for any products or services of such third party providers. Additionally, Apple Inc., Google, Inc., Microsoft Corporation or BlackBerry Limited will be a third-party beneficiary to this contract if you access the Services using Applications developed for Apple iOS, Android, Microsoft Windows, or Blackberry-powered mobile devices, respectively. These third party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Services in any manner. Your access to the Services using these devices is subject to terms set forth in the applicable third party beneficiary’s terms of service.

Ownership

The Services and all rights therein are and shall remain Onyx’s property or the property of Onyx’s licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner Onyx’s company names, logos, product and service names, trademarks or services marks or those of Onyx’s licensors.

Engagement with Onyx Crew Outside the Platform

You shall not engage with Onyx contractors and crew members but only in the Onyx platform. If you wish to hire a crew member for a longer term than any option given in the website, please notify Onyx in writing and send it to [email protected]. The fee for such will be the amount that is equal to 20% of the annual payments agreed by you and the crew member and shall not be less than ten thousand dollars ($10,000). The fee will be due no later than the start date of the crew member, work day number one (1). In case of a breach Onyx has the right to press charges in any legal matter of its choice.

Boat Delivery Service

Client agrees to hire Onyx servicers, and accepts Delivery Services with the rate mentioned in quote, plus transportation and other fees that may apply due to the use of this service, as defined:

(1) Definitions: “Delivery” – assuming command of the vessel for the sole purpose of moving her on her own hull from one port to another as designated by the owner. “Vessel Expenses” – fuel, lubricants, dockage, customs and port fees, repairs or maintenance necessary to the completion of the delivery, and purchase by the Onyx or by assigned contractors of any equipment required to comply with prevailing U.S. Coast Guard or local regulations.

(2) The owner will be responsible for the cost of any repair or maintenance required to complete the voyage. The owner will be contacted and consulted on any item of repair expected. An itemized statement of vessel expenses, and other delivery costs will be presented at the completion of the delivery. All fees and expenses are due upon presentation of the statement. The owner will be responsible to incur payments for crew, plus transportation to and from the boat.

(3) Inspection of the Vessel, Equipment Failure, and Safety of the Vessel and of the Crew are the primary concerns Onyx. Upon arrival at the Vessel, the Captain will make an inspection of the Vessel, her gear, equipment, and compliance with U.S. Coast Guard and other applicable regulations. If any condition is discovered which, in the opinion of the Captain, renders the Vessel unsafe for the intended route of the delivery, the Owner will be notified and the departure will be delayed until all such matters are resolved. If, during the course of the delivery, failure or damage to the yacht or failure or damage to equipment or systems, which would hinder the Vessel’s ability to continue or make a safe voyage occur, the Owner must correct or authorize the correction of such circumstances at Owner’s expense. The voyage may be terminated by the Captain if, in the Captain’s judgment, the vessel is unsafe for the intended route. The Captain will secure a berth for the Vessel at the Owner’s expense.

(4) Loss or Damage: Onyx and its employees and third party contractors are not responsible for wear of the Vessel, her gear or equipment, nor for any failure of the Vessel or equipment while under prudent operation in a manner consistent with established practices, nor is Onyx and its employees or third party contractors responsible for losses or damage due to piracy, war, government actions, acts of God including storms, lightning, or other natural phenomena. Onyx and its employees or third party contractors are not responsible for damages or injury to the Vessel or Crew, or for termination of the voyage due to the causes designated in this Article.

FLAT RATE:
The delivery fee for the service as mentioned in the delivery quote shall be the payment plus, any expenses necessary to complete the delivery.
Should it become necessary to stop during the passage to wait out bad weather or take care of a breakdown, it is agreed that any layover days caused by weather, mechanical failure, high water/seas, river and/or lock closures or other Acts of God incur fully. The owner will also be responsible for any expenses incurred by the crew during any lay days.

DAILY RATE:
The delivery fee shall be $900 per day + variable expenses.
Should it become necessary to stop during the passage to wait out bad weather or take care of a breakdown, it is agreed that any layover days caused by weather, mechanical failure, high water/seas, river and/or lock closures or other Acts of God shall be billed at the above agreed daily rate. The owner will also be responsible for any expenses incurred by the crew.

OPERATIONAL PROCEDURES:
Owner understands that the Captain and crew will cover as many miles as safely possible during daylight hours, but night running may occur if a situation is brought about by mechanical problems or lockage delays either upstream or downstream of the nearest suitable marina or overnight anchorage. Additionally, night running may also occur to include crossing large bodies of water (Great Lakes, Gulf of Mexico, open seas) in order to take advantage of favorable weather and sea conditions, or with prior oral or written approval by the owner provided the vessel is equipped with GPS, Chart plotter and radar.

EXPENSES UNDERWAY:
A Visa or MasterCard credit card in good standing shall be furnished by the owner with a notarized letter of authorization for the Captain’s use for en-route expenses. These expenses include but are not limited to fuel, dockage, repairs, services, and food provisioning in transit and ashore. A detailed accounting of expenses for all credit card charges and cash expenditures will be submitted by Onyx at the conclusion of the trip, and any out of pocket funds due the Captain/Crew will be made prior to their departure from vessel. In the event any vendor while underway declines the above supplied credit card, said trip shall be considered terminated at the point of declination. (See Early Termination)

TRIP LOG:
The Captain shall also maintain the vessels daily trip log (The Ships Log) detailing all activities to include hours of operation, position reports, locking delays, equipment failures, etc. In addition, fluid levels will be checked and logged daily, along with
notations that may reflect any deterioration in the vessel’s performance or seaworthiness.

INSURANCE:
Necessary insurance coverage shall be provided by the owner of the vessel in the form of a certificate or underwriters letter naming the Captain and Mate/Engineer/or Deckhand as additionally insured. Coverage shall include public liability and property damage to cover any contingency including but not limited to damage to vessel or injuries to the Captain or crew. It is also understood that Onyx, the Captain and Mates/Engineer or Deckhand will not be held responsible for wear and tear, acts of war, piracy, government insurgencies or counterinsurgencies, including damage to vessel, crew or passengers caused by faulty navigational equipment, improperly placed or missing navigational aids, uncharted underwater obstructions, or for termination of the voyage caused as a practical matter there from.

ILLEGAL ACTIVITIES:

All obligations of the Onyx under this agreement will become null and void if the said vessel is engaged in any illegal activity or violation of the Zero Tolerance government regulations regarding transportation or use of illegal drugs or smuggling on board. Onyx

will uphold the law, report such activities and support the authorities conducting any investigation whether on land or on the high seas.

EARLY TERMINATION:
It is also agreed that if the services of the Onyx is terminated by the owner prior to the successful completion of the trip, said Onyx will be paid for all days worked up to and including the day of termination, plus the travel days, along with necessary airfare for crews to return to domicile. It is also agreed that if (during the course of the voyage) credit cards are refused for any reason or the Captain determines the vessel is not seaworthy or conditions exist that are deemed not suitable for continuance or may result in a “vessel not under command” situation, Onyx and its employees and third party contractors may terminate the voyage. Accordingly, Onyx will be paid for all days worked up to and including the day of termination, plus the travel days, along with necessary airfare for crews return to domicile.

SEAWORTHINESS:
The following inspection checklist is provided to assist the owner/agent in preparing the vessel for transit. Upon dockside arrival, the Captain will use the aforementioned checklist to inspect the vessel to determine its seaworthiness and to verify compliance with necessary Coast Guard requirements and CFR’s for that particular vessel. If the Captain determines the vessel is not seaworthy or does not meet minimum CG requirements, he will state his reasons in writing on the checklist to the owner/agent.
Accordingly, if the owner/agent fails to address the noted deficiencies in a timely manner, Onyx will be paid for all days worked up to and including the day of termination, plus travel days, along with necessary airfare for crews return to domicile.

• Inspect all Life Jacket, Life rings
• Check/inspect all fire extinguishers and capabilities, check CO2 alarms
• Inspect all Navigational Lights and spare lamps, spot light
• Depth sounder/fathometer in working order
• Magnetic compass and Chart plotter operational, Nautical charts onboard
• Check ground tackle such as anchor, anchor rode, line, shackles, capstan, bow pulpit, rollers, spare anchor with ground tackle, Day shapes
• Ensure sound producing devices: Horn, Bell, Portable air horn
• Insure all flares and associated gear are operational (ex. flare gun)
• Insure life craft is secured properly and current
• Check all VHF-FM, SSB, Antennas for operation
• Flashlights, First Aid Kit, and interior/emergency lights are operational
• Have enough fenders, mooring lines
• Check all bilge float switches and high water alarms for correct operation (manually and power), Check all hose clamps on bilge pumps, Bilge floor should be clean and dry, have spare bilge pumps
• Check main engines, gear boxes, gen sets, oils and coolant levels
• Visually inspect all sea valves for operation and sea strainers and clean if necessary, have spare sea strainers, insure hose clamps are tight, have extra hose clamps

• Inspect steering gear for fluid leaks from hydraulic lines and steering ram, swing rudders hard right to hard left for smooth operation
• Inspect rudder glands and shaft packing glands, adjust accordingly, have extra gland packing
• Operated trim tabs and check fluid
• Ensure all batteries are secure, inspect battery electrolyte level and fill as required, have battery cables and extra battery
• Check and ensure portholes and deck hatches operation and that the seals are watertight

VESSEL EQUIPMENT:
The Owner must represent the vessel to be seaworthy and carry all current registration, documentation and insurance papers. If upon initial inspection or en route (underway), mechanical, electronic, electrical failure, loss or damage occurs or has occurred to said vessel or it’s equipment which, in the Captains’ judgment, hinders her ability to make or continue a safe voyage, the Owner must correct it, or authorize corrective action, at the Owner’s expense.

Also expected on board will be multiple sets of fuel filters for the main engines and genset(s), along with at least four one gallon containers of oil normally used in the main engines and one gallon of oil for the genset(s). The vessel must also carry the necessary tools to maintain simple repairs and maintenance while underway, to include spare bulbs, belts, etc. Vessel shall also carry ample supply of bed linens, cooking utensils and cleaning supplies, along with deck cleaning supplies and equipment to support the delivery, and as conditions allow, the crew will wash down the vessel to remove accumulated salt spray, diesel exhaust soot, or other harmful agents. Vessel shall also carry all charts, navigation instruments, binoculars, hand-held VHF radio, etc., as necessary to complete the trip over waterways specified above.

HOLD HARMLESS:
Onyx and its employees and third party contractors are not responsible for any wear and tear, nor for equipment failure under prudent operation consistent with established practices, nor for loss resulting from acts of God (ex lighting, hurricanes etc). Onyx and its employees and third party contractors are not responsible for any losses including losses due to acts of war, piracy, government’s actions, or insurgencies, nor for damage to the vessel or injuries to the crew, nor for the termination of the delivery caused by practical consequences from any of the above.

4. Access and Use of the Services

User Accounts

In order to use most aspects of the Services, you must register for and maintain an active personal user Services account (“Account”). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account, unless a specific Service permits otherwise. Account registration requires you to submit to Onyx certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method supported by Onyx. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Services. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by Onyx in writing, you may only possess one Account.

User Requirements and Conduct

The Service is not available for use by persons under the age of 18. You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to receive crew, transportation or logistics services from Third Party Providers unless they are accompanied by you. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when accessing or using the Services, and you may only access or use the Services for lawful purposes (e.g., no transport of unlawful or hazardous materials). You may not in your access or use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party. If you fail to comply with these Terms (including policies and supplemental terms), you may be denied access to or use of the Services and Onyx may charge you a cancellation fee for a transaction that could not be completed because of your failure to comply with these Terms. In certain instances you may be asked to provide proof of identity or other method of identity verification to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity or other method of identity verification.

Text Messaging & Telephone Calls

You agree that Onyx may contact you by telephone or text messages (including by an automatic telephone dialing system) at any of the phone numbers provided by you or on your behalf in connection with an Onyx account, including for marketing purposes. You understand that you are not required to provide this consent as a condition of purchasing any property, goods or services. You also understand that you may opt out of receiving text messages from Onyx at any time, either by texting the word “STOP” to 89203 using the mobile device that is receiving the messages, or by contacting [email protected]. If you do not choose to opt out, Onyx may contact you as outlined in its User Privacy Statement, located at https://www.sailonyx.com/privacy- guarantee

User Provided Content

Onyx may, in Onyx’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Onyx through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions (“User Content”). Any User Content provided by you remains your property. However, by providing User Content to Onyx, you grant Onyx a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Onyx’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.

You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant Onyx the license to the User Content as set forth above; and (ii) neither the User Content, nor your submission, uploading, publishing or otherwise making available of such User Content, nor Onyx’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Onyx in its sole discretion, whether or not such material may be protected by law. Onyx may, but shall not be obligated to, review, monitor, or remove User Content, at Onyx’s sole discretion and at any time and for any reason, without notice to you.

Network Access & Devices

You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. Onyx does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.

5. Payment

You understand that use of the Services may result in charges to you for the services or goods you receive (“Charges”). Onyx will receive and/or enable your payment of the applicable Charges for services or goods obtained through your use of the Services. Charges will be inclusive of applicable taxes where required by law. Charges may include other applicable fees, tolls, and/or surcharges including a booking fee, municipal tolls, airport surcharges or processing fees for split payments.

All Charges and payments will be enabled by Onyx using the preferred payment method designated in your Account, after which you will receive a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Onyx may use a secondary payment method in your Account, if available. Charges paid by you are final and non-refundable, unless otherwise determined by Onyx.

As between you and Onyx, Onyx reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in Onyx’s sole discretion. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand. Onyx will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. Onyx may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel your request for Services at any time prior to the commencement of such Services, in which case you may be charged a cancellation fee on a Third Party Provider’s behalf. After you have received services or goods obtained through the Service, you will have the opportunity to rate your experience and leave additional feedback. Onyx may use the proceeds of any Charges for any purpose, subject to any payment obligations it has agreed to with any Third Party Providers or other third parties.

In certain cases, with respect to Third Party Providers, Charges you incur will be owed directly to Third Party Providers, and Onyx will collect payment of those charges from you, on the Third Party Provider’s behalf as their limited payment collection agent, and payment of the Charges shall be considered the same as payment made directly by you to the Third Party Provider. In such cases, you retain the right to request lower Charges from a Third Party Provider for services or goods received by you from such Third Party Provider at the time you receive such services or goods, and Charges you incur will be owed to the Third Party Provider. Onyx will respond accordingly to any request from a Third Party Provider to modify the Charges for a particular service or good. This payment structure is intended to fully compensate a Third Party Provider, if applicable, for the services or goods obtained in connection with your use of the Services. In all other cases, Charges you incur will be owed and paid directly to Onyx or its affiliates, where Onyx is solely liable for any obligations to Third Party Providers. In such cases, you retain the right to request lower Charges from Onyx for services or goods received by you from a Third Party Provider at the time you receive such services or goods, and Onyx will respond accordingly to any request from you to modify the Charges for a particular service or good. Except with respect to taxicab transportation services requested through the Application, Onyx does not designate any portion of your payment as a tip or gratuity to a Third Party Provider. Any representation by Onyx (on Onyx’s website, in the Application, or in Onyx’s marketing materials) to the effect that tipping is “voluntary,” “not required,” and/or “included” in the payments you make for services or goods provided is not intended to suggest that Onyx provides any additional amounts, beyond those described above, to a Third Party Provider you may use. You understand and agree that, while you are free to provide additional payment as a gratuity to any Third Party Provider who provides you with services or goods obtained through the Service, you are under no obligation to do so. Gratuities are voluntary.

Repair, Cleaning or Lost & Found Fees

You shall be responsible for the cost of repair for damage to, or necessary cleaning of, vessels and property resulting from use of the Services under your Account.

Cancellation, Processing Fees and Modify Fees

Cancellation made two (2) days or more in advance of the service will receive a 96% refund, 4% Processing fee is not refundable. Cancellation made within twenty-four to forty-eight (24-48) hours to the service will incur a 30% fee. Cancellation made within twenty-four (24) hours will not receive a refund.

In the event, the vessel is not seaworthy, as determined by an Onyx employee, Onyx contractor, or any third party provider that represents Onyx, the client will incur a 50% fee of the total payment.

Trip Prolongation & Extra Fees

Client, at its expense, shall pay, for all expected and unexpected prolongation of a voyage, trip, boat delivery, relocation or other services provided by Onyx employees, Onyx contractor, or any third party provider that represents Onyx. Onyx has the liberty to incur any payment at its own judgment in the case a voyage, trip, boat delivery, relocation or other services provided by Onyx exceeded the agreed time frame for the service provided.

In the event of a mechanical or gear failure requiring a layover for the repair of more than four hours, layover time will be billed at 100% daily of the agreed daily rate. In the event of a layover of more than four hours due to severe weather, the delayed time will be billed at 100% of the agreed daily rate.

Client, at its expense, shall pay all extra expenses that may rise due to the use of the services, expected and unexpected.

Payment Information

Client acknowledges and approves, that Onyx has the right to store and save payment information provided by the client; over the phone, through the website, or by any other method. The payment information will be stored for up to seven (7) days after service is completed. Onyx has the right to charge the client for any incur payments that may occur while or after using the services.

6. Disclaimers; Limitation of Liability; Indemnity

Disclaimer

THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” ONYX DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, ONYX MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR- FREE. ONYX DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

Limitation of Liability

ONYX SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY AND DEATH, PROPERTY DAMAGE, RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF ONYX, EVEN IF ONYX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

ONYX SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF ONYX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ONYX SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND ONYX’S REASONABLE CONTROL. YOU ACKNOWLEDGE THAT THIRD PARTY PROVIDERS PROVIDING SERVICES REQUESTED THROUGH SOME REQUEST PRODUCTS MAY OFFER RIDESHARING OR PEER-TO-PEER TRANSPORTATION SERVICES AND MAY NOT BE PROFESSIONALLY LICENSED OR PERMITTED.

THE SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE TRANSPORTATION, GOODS, OR LOGISTICS SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT ONYX HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TRANSPORTATION, GOODS OR LOGISTICS SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.

THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, ONYX’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON ONYX’S CHOICE OF LAW PROVISION SET FORTH BELOW.

Indemnity

You agree to indemnify and hold Onyx and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) Onyx’s use of your User Content; or (iv) your violation of the rights of any third party, including Third Party Providers.

7. Other Provisions

Choice of Law

These Terms are governed by and construed in accordance with the laws of the State of Florida, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement above or in supplemental terms applicable to your region. However, the choice of law provision regarding the interpretation of these Terms is not intended to create any other substantive right to non-Floridians to assert claims under Florida law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 2 of these Terms, are only intended to specify the use of Florida law to interpret these Terms and the forum for disputes asserting a breach of these Terms, and these provisions shall not be interpreted as generally extending Florida law to you if you do not otherwise reside in Florida. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 2 or to any arbitrable disputes as defined therein. Instead, as described in Section 2, the Federal Arbitration Act shall apply to any such disputes.

Claims of Copyright Infringement

Claims of copyright infringement should be sent to Onyx’s designated agent. Please contact [email protected] for additional information.

Notice

Onyx may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, telephone or text message to any phone number provided in connection with your account, or by written communication sent by first class mail or pre-paid post to any address connected with your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or telephone). You may give notice to Onyx, with such notice deemed given when received by Onyx, at any time by first class mail or pre-paid post to our registered agent for service of process, c/o Onyx Elevated Experiences, LLC. The name and current contact information for the registered agent in each state are available online here.

General

You may not assign these Terms without Onyx’s prior written approval. Onyx may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Onyx’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Onyx or any Third Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Onyx’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Onyx in writing. This provision shall not affect the Severability and Survivability section of the Arbitration Agreement of these Terms.