This website and is owned and operated by The MASHUP LLC (d/b/a Rhythm & Sails) and/or one of its divisions, affiliates, subsidiaries, or joint ventures (“Rhythm & Sails,” “Company,” “we,” “our” or “us”). Please read these terms carefully. By accessing or viewing this Site or participating in or using any service offered on this Site (collectively, the “Services”), you agree to these Terms of Service (“Terms” or “Terms and Conditions”).
IMPORTANT NOTICE: THESE TERMS OF USE ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW WHICH YOU MAY OPT OUT OF PURSUANT TO THE TERMS BELOW. PLEASE READ THESE TERMS OF USE CAREFULLY PRIOR TO BOOKING.
1.0 Privacy Policy
1.1 Please review our Privacy Policy, which explains our practices relating to the collection and use of your information through or in connection with the Services. Our use of your information is governed at all times by our Privacy Policy, which is incorporated into these Terms and available here. You understand that through your use of the Services, you consent to the collection and use of this information.
2.0 Terms of Service
2.1 These Terms govern your access to and use of RhythmandSails.com as well as all Rhythm & Sails products and services available through this website (collectively, “Booking” or “Bookings”). By accessing or using any part of our Services, you agree to become bound by the Agreement. If you do not agree to all the terms of the Agreement, then you may not access or use our Services and you may not purchase a Booking.
2.2 Our Services are offered subject to your acceptance, without modification, of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, Rhythm & Sails’ privacy policy), and procedures that may be published from time to time by Rhythm & Sails (collectively, the “Agreement”).
2.3 You agree that we may from time to time make changes to our Services. We may make changes to the Agreement with thirty days written notice.
2.4 You may opt out of the changes set forth in Section 2.3 with a written request sent to [email protected] within 30 days of notice of change, except for provisions changed to comply with applicable law.
3.0 Definitions
3.1 Unless noted otherwise, the following expressions are to be interpreted as noted:
3.2 “Booking” – your reservations with Rhythm & Sails
3.3 Lead Booker – the individual who purchased the reservation
3.4 “Trip” – means a Rhythm & Sails excursion.
3.5 “You”, “Your”, “Guest”, “Booker”, “Lead Booker”. “Passenger” – All persons named on the booking or added to the booking at a later time
3.6 Words imparting the singular shall include the plural and vice versa and references to any gender shall include the other gender.
4.0 Booking
4.1 Rhythm & Sails Bookings are not considered complete upon receipt of the initial deposit in full.
4.2 By purchasing Booking, you agree that you have read and agree to our entire set of Terms and consent to our Privacy Policy.
4.3 All correspondence for the Booking will be sent to the Lead Booker.
4.4 We reserve the right to cancel any Booking within 5 business days, for any reason and are not responsible for other costs incurred by you in relation to the canceled Booking.
5.0 Age Requirements
5.1 The minimum age for a Rhythm & Sails guest is 21. If you are younger than 21 on or after the start date of the trip, you may not purchase a Booking or be added to one. Any person who books a Trip represents that they are 21 years of age or older on or before the first day of the trip.
5.2 We reserve the right to cancel any Booking for a person or persons under the age of 21.
6.0 Payment
6.1 – Payments can be made via credit card or debit card.
6.2 – We accept American Express, Visa, MasterCard and Discover, through a third party processor.
6.3 – All prices are listed and accepted only in USD
6.4 – To cover the cost of processing a credit or charge card transaction, and pursuant to section 5-2-212, Colorado Revised Statutes, a seller or lessor may impose a processing surcharge in an amount not to exceed the merchant discount fee that the seller or lessor incurs in processing the sales or lease transaction. A seller or lessor shall not impose a processing surcharge on payments made by use of cash, a check, or a debit card or redemption of a gift card.
6.5 – At no point does Rhythm & Sails have access to your credit card information, bank account numbers, or other personal financial data sent to those processing services.
7.0 Payment & Installments
7.1 – You may choose to pay for the entire Booking at the time of purchase or spread your Trip payment out over installments.
7.2 – Payments for Bookings made within 30 days of the start date of a Trip are due in full upon Booking and are non-refundable.
7.3 – For all considerations, the start of the Trip shall be at 12:00 AM midnight, Atlantic Standard Time on the first day of the Trip itinerary.
7.4 – If you choose to utilize the payment plan:
- A 2.9% financing fee will be added to the total cost of your Booking, minus the down payment.
- After the down payment, the remaining cost of the trip will be divided into equal payments and charged every 30 days.
- If the date of your Booking purchase is less than 6 months prior to the start of the Trip, the 6-month installment plan is not available. If you wish to request a shorter payment plan, email [email protected].
- If you are purchasing a Booking with a payment plan, you agree:
- That the credit card that you have on file with us will be charged for the amounts and at the intervals set forth in the payment schedule outlined during your purchase process.
- That if such credit card expires, is invalid, is deleted or is otherwise not capable of effecting payment on the dates set forth in your payment schedule, we will send an email notice to you and you will have a period of 5 days to make the payment. If we do not receive payment within such period, your purchase will be deemed to be canceled and all prior amounts will be forfeited and non-refundable.
- That the payment plan is subject to the terms of the Truth in Lending Act and although you will not be charged any interest, you will be charged a fee as stated during the purchase process.
7.5 – Regardless of when a Booking is made, full payment is due no later than 30 days prior to a Trip.
7.6 – Your Booking is not confirmed until your deposit has been paid. Rhythm & Sails reserves the right to cancel your Booking if all payments due are not received in full and on time. Refunds will be provided only according to our cancellation policy.
7.7 – If you wish to request special payment arrangements, you may do so in writing and send to [email protected].
8.0 Cancellation & Refund Policy
8.1 Bookings made more than 90 days in advance of a Trip are subject to the following terms of cancelation:
- Bookings canceled within 24 hours of purchase will receive a full refund.
- Bookings canceled within 30 days of the purchase will receive a 50% refund on payments submitted.
- Bookings are non-refundable and non-exchangeable after 30 days and all submitted payments will be forfeited in the event of a cancelation by the guest.
- Bookings canceled more than 24 hours after purchase and less than 60 days before the start of a Trip will not be eligible for any refund.
8.3 The start of the Trip shall be at 12:00 AM midnight, Atlantic Standard Time on the first day of the itinerary.
8.4 To cancel a Booking, a written request must be emailed to [email protected]
8.5 The time stamp on the written cancelation request email will be used to determine the eligibility for refund
9.0 Transferring Your Booking to a Different Trip
9.1 In the event that you want to transfer your Booking to a different Trip, Rhythm & Sails does not guarantee accommodation to such Trip.
9.2 If a Guest wishes to change their Booking to a different Trip, they can request in writing by sending an email to [email protected] and we will make reasonable efforts to accommodate.
9.3 No refunds will be given if the new Trip price is less than the original Booking. In the event the rebooked Trip is more expensive, you will have to pay the difference between the original Trip price and the new Trip price.
10.0 Transferring Your Booking to a Different Person
10.1 If you wish to transfer one or both spots on your booking to another person, you may contact [email protected] and make a written request at a minimum of 45 days prior to your Trip.
10.2 Rhythm & Sails does not guarantee that we can transfer your Booking to another person.
11.0 Guest Behavior and Code of Conduct
11.1 All guests on Rhythm & Sails Trips are expected to behave in a reasonable and respectful manner, and agree not to endanger or cause distress to themselves, other guests or Rhythm & Sails staff.
11.2 Any Guest causing damage to boats, hotels, restaurants, bars and/or other establishments or equipment will pay for the cost of repair or replacement.
11.4 Rhythm & Sails is not responsible and will not be liable for any Guest’s behavior
11.5 If Rhythm & Sails staff reasonably believe that a Guest is not behaving in accordance with the Code of Conduct during a Trip, we reserve the right to immediately remove the Guest from the Trip. The Guest will be responsible for arranging alternative transportation in such event.
11.6 Rhythm & Sails reserves the right to ban unruly Guests from future Bookings.
12.0 Drugs and Alcohol
12.1 In order to provide a safe and comfortable Trip for all guests, Rhythm & Sales has a zero tolerance drug policy and reserves the right to remove Guests who are not in accordance with the Code of Conduct.
12.2 Guests may drink alcohol but do so at their own risk in accordance with the Code of Conduct.
12.3 Rhythm & Sails reserves the right to remove Guests who are deemed disruptive or threatening to other guests due to excessive alcohol consumption
12.4 Rhythm & Sails will have no further responsibility to Guests who are removed for not obeying drug or alcohol policies.
13.0 Travel and Documents
13.1 You must have a valid passport to participate in a Trip
13.2 Your passport must be valid for 6 months from the date of entry to St. Vincent and the Grenadines and any other country visited during your Trip,
13.3 Rhythm & Sails is not liable for any losses incurred by a Guest who does not have a valid passport/visa or health documents which comply with local government regulations.
13.4 Rhythm & Sails will not be held responsible for any amount of Trip interruption due to missed or delayed flights for any reason.
13.5 Rhythm & Sails will not reimburse or refund travelers due to additional travel costs incurred that are out of the control of Rhythm & Sails
13.6 You are responsible for obtaining all required visas and ensuring you can comply with all entry requirements for each country visited on a Trip.
14.0 Personal Travel Information and Crew Lists
14.1 In order to comply with local Port Authorities, we must submit your personal details to them in the form of a Crew List ahead of each Trip. Your submission of your personal details will be governed by our privacy policy.
14.2 Crew List information must be filled out accurately and includes surname, name, residence, date of birth, place of birth, email, phone number, passport number and nationality
14.2 It is mandatory that Crew List details are completed for every passenger attending.
14.4 Guest must submit Crew List information at least 45 days before the start of a Trip
14.5 If a Guest fails to submit their Crew List information by the due date, we reserve the right to cancel the Booking without any right of refund
15.0 Travel Insurance, Health Insurance and Medical Concerns
15.1 Rhythm & Sails does not sell or provide travel insurance or health insurance.
15.2 We highly recommend that every person on a Booking engage a third party to secure travel insurance in case your Trip is disrupted by conditions including but not limited to: cancellation of the flights, Trips, excursions, lost luggage, death in a family, visa problems, injuries, pregnancy, pandemics, etc.
15.3 We require that every person on a Booking is covered by a third party health insurance policy in case you get sick or injured during your Trip. Note that your insurance policy should be effective in St. Vincent and the Grenadines and any other country you visit during the course of your Trip.
15.4 Rhythm & Sails is not responsible for costs associated with uninsured travelers.
15.5 The act of sailing or being a Guest on a sailboat is a physical activity by nature. It is incumbent upon the Guest to inform us prior to, or immediately upon, Booking if they have any medical conditions that may affect their Trip.
15.6 Rhythm & Sails reserves the right to deny service to a person or persons who did not fully disclose pertinent medical conditions.
15.7 Rhythm & Sails is not responsible for Trip interruption or cancellation due to an undisclosed medical condition.
16.0 Type of Boat and Equipment On Board
16.1 – All images, descriptions and information on our website regarding specific boats are to be interpreted solely as an example and are subject to change.
16.2 – Specific Guest boats will be subject to availability and can be substituted by Rhythm & Sails or its boat supplier at any point.
16.2 – No compensation shall ever be payable to a guest in the event of ‘un-essential’ equipment failure, including but not limited to, the following: VHF, refrigeration, stereo/cassette/CD player, water pressure pump, dinghy, outboard, air conditioning, generator, and any other item which does not render the yacht inoperable.
17.0 Guest Room Placement
17.1 Rhythm & Sails will make a fair and reasonable attempt to place Guest on specific boats as requested but cannot guarantee a Guest will be on a specific boat..
17.2 Guests will be placed in berths at the discretion of Rhythm & Sails and according to a number of factors which Rhythm & Sails deems necessary to conduct a fair and comfortable Trip for all Guests.
18.0 Changes to Prices or Itineraries
18.1 Rhythm & Sails reserves the right to change the advertised price of any Trip.
18.2 If Rhythm & Sails changes the advertised price of a Trip, Guests who have already Booked will not be charged extra or refunded the difference.
18.4 Rhythm & Sails reserves the right to make changes to a Trip itinerary for any reason.
18.4 Rhythm & Sails reserves the right to remove or replace any musical artist, captain or staff included on a Trip for any reason.
19.0 Non-Discrimination
19.1 Rhythm & Sails does not not discriminate on the basis of race, color, religion (creed), gender, gender expression, age, national origin (ancestry), disability, marital status, sexual orientation, or military status, in any of its activities or operations.
20.0 Disabled Guests and ADA Compliance
20.1 Rhythm & Sails welcomes guests with disabilities and, pursuant to the ADA, will provide reasonable accommodation(s) to all guests with known disabilities, except where doing so would be unduly disruptive or would result in undue hardship for guests and/or employees.
20.2 It is the responsibility of the Guest to inform us prior to, or immediately upon, Booking if they have any disabilities that may need reasonable accommodations.
20.3 If a Guest does not inform us of special needs or requirements in a timely manner, we cannot guarantee accommodation and are not responsible for compensating the Guest in any way.
21.0 LIMITATIONS OF LIABILITY:
a. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, Rhythm & Sails SHALL NOT BE LIABLE FOR INJURY, DEATH, ILLNESS, DAMAGE, DELAY OR OTHER LOSS TO PERSON OR PROPERTY, OR ANY OTHER CLAIM BY ANY PASSENGER CAUSED BY ACT OF GOD, WAR, TERRORISM, CIVIL COMMOTION, LABOR TROUBLE, GOVERNMENT INTERFERENCE, PERILS OF THE SEA, FIRE, ORDERS BY GOVERNMENT AGENCIES RESTRICTING TRAVEL DUE TO DECLARED PANDEMICS, PUBLIC HEALTH EMERGENCIES OR OUTBREAKS OF COMMUNICABLE DISEASE, COVID-19, INFLUENZA, COLDS AND NOROVIRUS, QUARANTINES, NATIONAL OR REGIONAL EMERGENCIES, THEFTS OR ANY OTHER CAUSE BEYOND Rhythm & Sails’ REASONABLE CONTROL, OR ANY ACT NOT SHOWN TO BE CAUSED BY Rhythm & Sails’ NEGLIGENCE.
b. PASSENGER AGREES TO SOLELY ASSUME THE RISK OF INJURY, DEATH, ILLNESS OR OTHER LOSS, AND Rhythm & Sails IS NOT RESPONSIBLE FOR PASSENGER’S USE OF ANY ATHLETIC OR RECREATIONAL EQUIPMENT; OR FOR THE NEGLIGENCE OR WRONGDOING OF ANY INDEPENDENT CONTRACTORS, INCLUDING BUT NOT LIMITED TO PHOTOGRAPHERS OR ENTERTAINERS; OR FOR EVENTS TAKING PLACE OFF THE Rhythm & Sails’ VESSELS, LAUNCHES OR TRANSPORTS, OR AS PART OF ANY SHORE EXCURSION, TOUR OR ACTIVITY.
c. Rhythm & Sails HEREBY DISCLAIMS ALL LIABILITY TO THE PASSENGER FOR DAMAGES FOR EMOTIONAL DISTRESS, MENTAL SUFFERING OR PSYCHOLOGICAL INJURY OF ANY KIND UNDER ANY CIRCUMSTANCES, WHEN SUCH DAMAGES WERE NEITHER THE RESULT OF A PHYSICAL INJURY TO THE PASSENGER, NOR THE RESULT OF PASSENGER HAVING BEEN AT ACTUAL RISK OF PHYSICAL INJURY, NOR WERE INTENTIONALLY INFLICTED BY THE Rhythm & Sails. WITHOUT LIMITING THE PRECEDING SENTENCE, IN NO EVENT WILL Rhythm & Sails BE LIABLE TO PASSENGER FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES.
d. ON INTERNATIONAL VOYAGES THAT EMBARK OR DISEMBARK IN A PORT OF A EUROPEAN UNION MEMBER STATE AND DO NOT EMBARK, DISEMBARK OR CALL AT ANY U.S. PORT, Rhythm & Sails SHALL BE ENTITLED TO ANY AND ALL LIABILITY LIMITATIONS AND IMMUNITIES FOR DEATH AND/OR PERSONAL INJURY AS PROVIDED UNDER EU REGULATION 392/2009 ON THE LIABILITY OF Rhythm & Sails TO PASSENGERS IN THE EVENT OF ACCIDENTS. ON INTERNATIONAL CRUISES THAT DO NOT EMBARK OR DISEMBARK IN EITHER A PORT IN A EUROPEAN UNION MEMBER STATE OR A U.S. PORT, AND WHICH DO NOT CALL AT ANY U.S. PORT, Rhythm & Sails SHALL BE ENTITLED TO ANY AND ALL LIABILITY LIMITATIONS AND IMMUNITIES FOR DEATH AND/OR PERSONAL INJURY AS PROVIDED IN THE ATHENS CONVENTION RELATING TO THE CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA, 1974 AND THE PROTOCOL OF 2002 TO THAT CONVENTION (TOGETHER, THE “ATHENS CONVENTION”) ON THE LIABILITY OF Rhythm & Sails TO PASSENGERS IN THE EVENT OF ACCIDENTS. UNDER BOTH EU REGULATION 392/2009 AND THE ATHENS CONVENTION, Rhythm & Sails’S LIABILITY IS LIMITED TO NO MORE THAN 400,000 SPECIAL DRAWING RIGHTS (“SDR”) PER PASSENGER (APPROXIMATELY U.S. $552,000) IF THE PASSENGER PROVES THAT THE INCIDENT WAS A RESULT OF Rhythm & Sails’S FAULT OR NEGLECT. AN SDR IS AN INTERNATIONALLY RECOGNIZED MONETARY MEASUREMENT WHOSE VALUE FLUCTUATES DEPENDING ON THE DAILY EXCHANGE RATE AS PUBLISHED BY THE INTERNATIONAL MONETARY FUND AT WWW.IMF.ORG OR IN THE WALL STREET JOURNAL. IF THE LOSS OR DAMAGE WAS CAUSED BY A SHIPPING INCIDENT, DEFINED AS A SHIPWRECK, CAPSIZING, COLLISION OR STRANDING OF THE SHIP, EXPLOSION OR FIRE IN THE SHIP, OR DEFECT IN THE SHIP (AS DEFINED BY THE EU REGULATION AND ATHENS CONVENTION), Rhythm & Sails’S LIABILITY IS LIMITED TO NO MORE THAN 250,000 SDRS PER PASSENGER (APPROXIMATELY U.S. $345,000). COMPENSATION FOR LOSS CAUSED BY A SHIPPING INCIDENT CAN INCREASE TO A MAXIMUM OF 400,000 SDRS PER PASSENGER (APPROXIMATELY U.S. $552,000) UNLESS Rhythm & Sails PROVES THAT THE SHIPPING INCIDENT OCCURRED WITHOUT Rhythm & Sails’S FAULT OR NEGLECT. SHIPPING INCIDENTS DO NOT INCLUDE ACTS OF WAR, HOSTILITIES, CIVIL WAR, INSURRECTION, NATURAL DISASTERS, OR INTENTIONAL ACTS OR OMISSIONS OF THIRD PARTIES. IN CASES WHERE THE LOSS OR DAMAGE WAS CAUSED IN CONNECTION WITH WAR OR TERRORISM, Rhythm & Sails’S LIABILITY FOR ANY PERSONAL INJURY OR DEATH (WHETHER OCCURRING DURING A SHIPPING INCIDENT OR A NON-SHIPPING INCIDENT) IS LIMITED TO THE LOWER OF 250,000 SDRS PER PASSENGER (APPROXIMATELY U.S. $345,000) OR 340 MILLION SDRS (APPROXIMATELY U.S. $469,200,000) PER SHIP PER INCIDENT. PUNITIVE DAMAGES ARE NOTRECOVERABLE FOR CRUISES COVERED BY EU REGULATION 392/2009 OR THE ATHENS CONVENTION. UNDER BOTH EU REGULATION 392/2009 AND THE ATHENS CONVENTION, CARRIER’S LIABILITY FOR LOSS OR DAMAGE TO CABIN LUGGAGE IS LIMITED TO 2,250 SDR (APPROXIMATELY U.S. $3,181). IN ADDITION, PASSENGERS EMBARKING A CRUISE IN A EUROPEAN MEMBER STATE PORT ARE AFFORDED RIGHTS UNDER EU REGULATION 1177/2010. FOR A COPY OF EU REGULATION 392/2009, VISIT HTTPS://EUR-LEX.EUROPA.EU/LEGAL-CONTENT/EN/TXT/PDF/?URI=CELEX:32009R0392&FROM=EN. FOR A COPY OF THE ATHENS CONVENTION AND THE 2002 PROTOCOL THERETO, VISIT HTTPS://TREATIES.UN.ORG/DOC/PUBLICATION/UNTS/VOLUME%201463/VOLUME1463-I-24817-ENGLISH.PDF AND HTTPS://TREATIES.UN.ORG/DOC/PUBLICATION/UNTS/NO%20VOLUME/24817/A-24817-080000028053BF55.PDF (FULL TEXT IN ENGLISH BEGINS AT PAGE 40). e. AS TO ALL OTHER CRUISES NOT DESCRIBED ABOVE IN SECTIONS 12.D, ALL THE RESTRICTIONS, EXEMPTIONS FROM, AND LIMITATIONS OF LIABILITY PROVIDED IN, OR AUTHORIZED BY THE LAWS OF THE UNITED STATES SHALL APPLY, INCLUDING BUT NOT LIMITED TO, TITLE 46 OF THE UNITED STATES CODE §§ 30501 THROUGH 30509, AND 30511.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THIS AGREEMENT AND ALL DISPUTES OR CLAIMS WHATSOEVER BY PASSENGER ARISING FROM OR RELATED TO THIS AGREEMENT SHALL IN ALL RESPECTS AND WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES, BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO IN ACCORDANCE WITH THE GENERAL MARITIME LAW OF THE UNITED STATES OF AMERICA, AND, WHEN APPLICABLE, THE U.S. DEATH ON THE HIGH SEAS ACT (46 U.S.C. § 30301 ET SEQ.). EXCEPT AS OTHERWISE EXPRESSLY SPECIFIED IN THIS TICKET, PASSENGER AGREES THIS CHOICE OF LAW SUPERSEDES AND PREEMPTS ANY PROVISION OF LAW OF ANY OTHER STATE OR NATION.
22.0 Complaints
22.1 Should any situation arise before your Trip that is unsatisfactory, a written complaint shall be sent to info@rhythmandsails and we will address it promptly.
22.2 Should any situation arise during your Trip that is unsatisfactory, it should be explained to your captain or Trip leader so it can be immediately addressed and resolved to the best of their ability.
22.3 Should an issue arise during a Trip and not be resolved, please send a written explanation to [email protected]
23.0 Advertised Activities Which Are Provided, Hosted or Supplied by Third Parties
23.1 As part of its website and advertising content, Rhythm & Sails may provide information about services or activities provided by third parties
23.2 We are not responsible for the accuracy or unavailability of third party services which may have changed without our knowledge.
23.3 If Rhythm & Sails becomes aware of any changes, we will do our best to notify guests in advance.
24.0 Extraordinary Circumstances and Force Majeure
24.1 Except where we specifically say otherwise in these terms and conditions, we cannot accept any liability or pay any compensation where your Trip and/or any other Services we have promised to arrange or provide cannot be provided at all, or as promised or you otherwise suffer any damage or loss as a result of circumstances which are outside our control (‘force majeure’). Such events are likely to include war or threat of war, acts of terrorists or threats of such acts, riots or civil unrest, industrial action, natural or nuclear disaster, fire, adverse weather conditions, health risks, epidemics, mechanical difficulties (which we could not have anticipated or avoided despite our normal comprehensive mechanical checks), the non-availability of ports and ancillary facilities; the inability of cruise operators to operate cruises as a direct or indirect result or consequence of any government or regulatory order, and all similar circumstances which are outside our control
25.0 CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
You and Rhythm & Sails agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section is intended to be interpreted broadly and governs any and all disputes between us, including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims Rhythm & Sails to advertising, and any content available on or through any of our website(s)); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
By agreeing to these Terms, you agree to resolve any and all disputes with Rhythm & Sails as follows:
Initial Dispute Resolution: Most disputes can be resolved without resort to litigation. You can reach Rhythm & Sails at [email protected] except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Rhythm & Sails, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
Binding Arbitration: If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ or Privacy Policy’s formation, performance, and breach), the parties’ relationship with each other, and/or your use of our website(s) shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms or the Privacy Policy, including but not limited to any claim that all or any part of these Terms or Privacy Policy is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To start an arbitration, you must do the following: (a) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com ); (b) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, 620 Eighth Ave. NY Times Building 34th Floor New York, NY 10018 USA; and (c) send one copy of the Demand for Arbitration to Rhythm & Sails 7106 S Brook Forest Road Evergreen, CO 80439.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Rhythm & Sails will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, Rhythm & Sails will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing. For individuals residing outside the United States, arbitration shall be initiated in the State of Colorado, United States of America. You and Rhythm & Sails further agree to submit to the personal jurisdiction of any federal or state court in Denver, Colorado, USA in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver: The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND Rhythm & Sails AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception for Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
30-Day Right to Opt Out: You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending (from the email address you used to create your Account) written notice of your decision to opt out to [email protected] with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of your agreement to these Terms; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, Rhythm & Sails also will not be bound by them.
Changes to This Section: Rhythm & Sails will provide thirty (30) days’ notice of any changes to this section by posting on the Services, sending you a message, or otherwise notifying you when you are logged into your account. Amendments will become effective thirty (30) days after they are posted on the Services or sent to you.
Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled “Arbitration and Class Action Waiver,” and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section in existence after you began using the Services.
Survival: This Arbitration and Class Action Waiver section shall survive any termination of your Account or the Services.
