Last modified: 11/04/2020
1. contractual Relationship
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@example.com. 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.
Location and Procedure
Severability and Survival
3. The Services
Third Party Services and Content
Engagement with Onyx Crew Outside the Platform
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.
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.
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.
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.
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)
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.
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.
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.
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.
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
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.
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 Requirements and Conduct
Text Messaging & Telephone Calls
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 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
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.
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
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.
7. Other Provisions
Choice of Law
Claims of Copyright Infringement