Terms of Service
Terms of Service
PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
TERMS OF SERVICE
THE SITE, APPLICATION AND SERVICES COMPRISE AN ONLINE PLATFORM THROUGH WHICH PROVIDERS MAY CREATE LISTINGS AND ENJOYERS MAY LEARN ABOUT AND BOOK ACTIVITIES DIRECTLY WITH PROVIDERS. YOU UNDERSTAND AND AGREE THAT SHAKA IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN PROVIDERS AND ENJOYERS, NOR IS SHAKA AN ACTIVITES BROKER, AGENT OR INSURER. SHAKA HAS NO CONTROL OVER THE CONDUCT OF PROVIDERS, ENJOYERS AND OTHER USERS OF THE SITE, APPLICATION AND SERVICES. THE COMPANY DOES NOT PROVIDE ANY WARRANTY OR OTHER REPRESENTATION REGARDING THE SUITABILITY OR QUALITY OF ANY OF THE PROVIDERS AND ENJOYERS BOOK ACTIVITIES SUBJECT TO THEIR OWN ASSESSMENT OF SUCH SUITABILITY AND QUALITY AND HENCE AT THEIR OWN RISK. THE COMPANY DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW.
"Booking Request Period" means the time period starting from the time when a booking is requested by an Enjoyer (as determined by Shaka in its sole discretion), within which a Provider may decide whether to confirm or reject that booking request, as stated on the Site, Application or Services. Different Booking Request Periods may apply in different places.
"Collective Content" means Member Content and Shaka Content.
"Content" means text, graphics, images, music, software (excluding the Application), audio, video, information or other materials.
"Enjoyer" means a Member who requests from a Provider a booking of Activities via the Site, Application or Services, or a Member who uses the Activities and is not the Provider for such Activites.
"Provider" means a Member who creates a Listing via the Site, Application and Services.
"Listing" means one or more Activities that is listed by a Provider as available for booking via the Site, Application and Services.
"Member" means a person who completes Shaka's account registration process, including but not limited to Enjoyers and Providers, as described under "Account Registration" below.
"Member Content" means all Content that a Member posts, uploads, publishes, submits, transmits, or includes in their Listing or Member profile to be made available through the Site and/or Application.
"Shaka Content" means all Content that Shaka makes available through the Site, Application, or Services, including any Content licensed from a third party, but excluding Member Content.
"Tax" or "Taxes" mean any sales taxes, value added taxes (VAT), goods and services taxes (GST), that Providers may be required by law to collect and remit to governmental agencies, and other similar municipal, state, federal and national indirect or other withholding and personal or corporate income taxes.
Certain areas of the Site and Application (and your access to or use of certain aspects of the Services or Collective Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Application or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Application, or Collective Content.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE OR APPLICATION OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE, VIA THE APPLICATION OR THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE AND APPLICATION. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, APPLICATION AND SERVICES, OR COLLECTIVE CONTENT. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, "you" and "your" will refer and apply to that company or other legal entity.
Shaka reserves the right, at its sole discretion, to modify the Site or Application or to modify these Terms, including the Service Fees, at any time and without prior notice. If we modify these Terms, we will either post the modification on the Site or via the Application or otherwise provide you with notice of the modification. We will also update the "Last Updated Date" at the top of these Terms. By continuing to access or use the Site, Application or Services after we have posted a modification on the Site or via the Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site, Application or Services.
The Site, Application or Services are intended solely for persons who are 18 or older. Any access to or use of the Site or Application or Services by anyone under 18 is expressly prohibited. By accessing or using the Site, Application or Services you represent and warrant that you are 18 or older.
How the Site, Application and Services Work
The Site and Application can be used to facilitate the listing and booking of Activities. Such Activities and Providers are included in Listings on the Site or Application. You may view Listings as an unregistered visitor to the Site and Application; however, if you wish to book Activities or create a Listing, you must first register to create a Shaka Account (defined below).
As stated above, Shaka makes available an online platform with related technology for Providers and Enjoyers to meet online and arrange for bookings of Activities directly with each other. Shaka is not an Activities provider, owner or operator of Activities related facilities and equipment, or transportation or travel services. Unless explicitly specified otherwise in the Shaka platform, Shaka's responsibilities are limited to: (i) facilitating the availability of the Site, Application and Services and (ii) serving as a portal to facilitate collection of payment from each Enjoyer on behalf of each Provider, subject to receipt of a payment from the Provider for the provision of such portal and services.
PLEASE NOTE THAT, AS STATED ABOVE, THE SITE, APPLICATION AND SERVICES ARE INTENDED TO BE USED TO FACILITATE PROVIDERS AND ENJOYERS CONNECTING AND BOOKING ACTIVITIES DIRECTLY WITH EACH OTHER. SHAKA CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY LISTINGS AND THE CONDITION, LEGALITY OR SUITABILITY OF ANY ACTIVITIES. SHAKA IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS AND ACTIVITIES. ACCORDINGLY, ANY BOOKINGS WILL BE MADE OR ACCEPTED AT THE MEMBER'S OWN RISK.
In order to access certain features of the Site and Application, and to book an Activity or create a Listing, you must register to create an account ("Shaka Account") and become a Member. You may register to join the Services directly via the Site or Application or as described in this section.
You can also register to join by logging into your account with certain third-party social networking sites ("SNS") (including, but not limited to, Facebook; each such account, a "Third-Party Account"), via our Site or Application, as described below. As part of the functionality of the Site, Application and Services, you may link your Shaka Account with Third-Party Accounts, by either: (i) providing your Third-Party Account login information to Shaka through the Site, Services or Application; or (ii) allowing Shaka to access your Third-Party Account, as permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Shaka and/or grant Shaka access to your Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Shaka to pay any fees or making Shaka subject to any usage limitations imposed by such third-party service providers. By granting Shaka access to any Third-Party Accounts, you understand that Shaka will access, make available and store (if applicable) any Content that you have provided to and stored in your Third-Party Account ("SNS Content") so that it is available on and through the Site, Services and Application via your Shaka Account and Shaka Account profile page. Unless otherwise specified in these Terms, all SNS Content, if any, will be considered to be Member Content for all purposes of these Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts will be available on and through your Shaka Account on the Site, Services and Application. Please note that if a Third-Party Account or associated service becomes unavailable or Shaka's access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Site, Services and Application. You have the ability to disable the connection between your Shaka Account and your Third-Party Accounts, at any time, by accessing the "Settings" section of the Site and Application. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS. Shaka makes no effort to review any SNS Content for any purpose, including but not limited to for accuracy, legality or non-infringement and Shaka is not responsible for any SNS Content.
Your Shaka Account and your Shaka Account profile page will be created for your use of the Site and Application based upon the personal information you provide to us or that we obtain via an SNS as described above. You may not have more than one (1) active Shaka Account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Shaka reserves the right to suspend or terminate your Shaka Account and your access to the Site, Application and Services if you create more than one (1) Shaka Account, or if any information provided during the registration process or thereafter proves to be inaccurate, fraudulent, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Shaka Account, whether or not you have authorized such activities or actions. You will immediately notify Shaka of any unauthorized use of your Shaka Account.
As a Member, you may create Listings. To create a Listing, you will be asked a variety of questions about the Activities to be listed, including, but not limited to, the location, type, available equipment, certificate and qualifications of the Provider and pricing and related rules and financial terms. Listings will be made publicly available via the Site, Application and Services. Other Members will be able to book your Activities via the Site, Application and Services based upon the information provided in your Listing. You understand and agree that once an Enjoyer requests a booking of your Activities, you may not request the Enjoyer to pay a higher price than in the booking request.
You acknowledge and agree that you alone are responsible for any and all Listings and Member Content you post. Accordingly, you represent and warrant that any Listing you post and the booking of, or an Enjoyer's use of Activities in a Listing you post (i) will not breach any agreements you have entered into with any third parties, such as your employer, customers, or similar party and (ii) will (a) be in compliance with all applicable laws, Tax requirements, and rules and regulations that may apply to any Activities included in a Listing you post (including having all required permits, licenses and registrations), and (b) not conflict with the rights of third parties. Please note that Shaka assumes no responsibility for an Enjoyer's compliance with any agreements with or duties to third parties, applicable laws, rules and regulations. Shaka reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason, including Listings that Shaka, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or Shaka's then-current Policies and Community Guidelines, or otherwise harmful to the Site, Application or Services.
If you are a Provider, you understand and agree that Shaka does not act as an insurer or as your contracting agent. If an Enjoyer requests a booking of your Activities and uses them, any agreement you enter into with such Enjoyer is between you and the Enjoyer and Shaka is not a party to it. Notwithstanding the foregoing, Shaka either serves or uses an appointed third party as the limited authorized payment collection agent of the Provider for the purpose of accepting, on behalf of the Provider, payments from Enjoyers of such amounts stipulated by the Provider (including applicable fees and/or Taxes).
When you create a Listing, you may also choose to include certain requirements which must be met by the Members who are eligible to request a booking of your Activities, such as requiring Members to have a profile name, surname, picture or verified e-mail or phone number, in order to book your Activities. Any Member wishing to book Activities included in Listings with such requirements must meet these requirements. More information on how to set such requirements is available via the "Provider" section of the Site, Application and Services.
If you are a Provider, Shaka makes certain tools available to you to help you to make informed decisions about which Members you choose to confirm or preapprove for booking for your Activities. You acknowledge and agree that, as a Provider, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who provides or are otherwise present at the time of provision of Activities at your request
Shaka requires that Providers to obtain appropriate insurance for their Activities and provides written confirmation to Shaka that such insurance remains in force. Please review any insurance policy that you may have for your Activities carefully, and in particular please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Enjoyers. Shaka does not assess the suitability of Enjoyers for activities that they may wish to participate in. It is the responsibility of Providers to assess the suitability of Enjoyers for any such activities and Shaka shall have no responsibility to any Providers in respect of any claim that may be made by Enjoyers or third parties against Providers in respect of any matter arising out of the relationship between Enjoyers and Providers. Providers agree to indemnify and keep indemnified Shaka against any liability of any nature that Shaka may incur from any action brought by Enjoyers or third parties arising out of the relationship between Enjoyers and Providers.
Shaka does not endorse any Member or any Activities. Members are required by these Terms to provide accurate information, and although Shaka may undertake additional checks and processes designed to help verify or check the identities, ages or backgrounds of users, we do not make any representations about, confirm, or endorse any Member or the Member's purported identity, age or background.
Any references in the Site, Application or Services to a Member being "verified" or "connected" (or similar language) only indicate that the Member has completed a relevant verification process, and does not represent anything else. Any such description is not an endorsement, certification or guarantee by Shaka about any Member, including of the Member's identity and whether the Member is trustworthy, safe or suitable. Instead, any such description is intended to be useful information for you to evaluate when you make your own decisions about the identity and suitability of others whom you contact or interact with via the Site, Application and Services. We therefore recommend that you always exercise due diligence and care when deciding whether to stay with a Provider or to accept a booking request from an Enjoyer, or to have any other interaction with any other Member.
By using the Site, Application or Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Members or other third parties will be limited to a claim against the particular Members or other third parties who caused you harm. You agree not to attempt to impose liability on or seek any legal remedy from Shaka with respect to such actions or omissions. Accordingly, we encourage you to communicate directly with other Members on the Site and Services regarding any bookings or Listings made by you. This limitation shall not apply to any claim by a Provider against Shaka regarding the remittance of payments received from an Enjoyer by Shaka on behalf of a Provider, which instead shall be subject to the limitations described in the section below entitled "Limitation of Liability".
Bookings and Financial Terms
"Activities Fees" means the amounts that are due and payable by an Enjoyer in exchange for that Enjoyer's receipt of Activities. The Provider alone, and not Shaka, is responsible for the Activities Fees for his or her Listing. The Provider may in his or her sole discretion decide to include in these amounts (i) a service fee or any other fee permitted on the Shaka platform, or (ii) Taxes that the Provider determines that he or she has to collect.
"Enjoyer Fees" means the fee that Shaka charges an Enjoyer for the use of the Services, which is calculated as a percentage of the applicable Activities Fees. The Enjoyer Fees will be displayed to the Enjoyer when the Enjoyer is asked whether to send a booking request to a Provider.
"Provider Fees" means the fee that Shaka charges a Provider for the use of the Services, which is calculated as a percentage of the applicable Activities Fees. The Provider Fees will be displayed to the Provider when the Provider is asked whether to confirm or reject a booking request from a prospective Enjoyer.
"Service Fees" means collectively the Enjoyer Fees and the Provider Fees.
"Total Fees" means collectively the Activities Fees and the Enjoyer Fees plus any Taxes.
Bookings and Financial Terms for Providers and Enjoyers
If you are a Provider and a booking is requested for your Activities via the Site, Application or Services, you will be required to either confirm or reject the booking request within the Booking Request Period, otherwise the booking request will automatically expire. When a booking is requested via the Site, Application or Services, we will share with you (i) the first and last name of the Enjoyer who has requested the booking, (ii) a link to the Enjoyer's Shaka Account profile page, (iii) if the Enjoyer and Provider have both connected their Shaka accounts to SNS, the names of any members of an SNS with whom you are "friends" or associated on the SNS if such individuals are also "friends" or associated with the Enjoyer on such SNS, and (iv) an indication of whether or not the Enjoyer has provided other information to Shaka, such as a verified email address, connection to SNSs, or a government ID. If you are unable to confirm or decide to reject a booking request within the Booking Request Period, any amounts collected by Shaka for the requested booking will be refunded to the applicable Enjoyer's credit card and any pre-authorization of such credit card will be released. When you confirm a booking requested by an Enjoyer, Shaka will send you an email, text message or message via the Application confirming such booking, depending on the selections you make via the Site, Application and Services.
Shaka will collect the Total Fees at the time of booking confirmation (i.e. when the Provider confirms the booking request) and will initiate payment of the Activities Fees (less Shaka's Provider Fees and any Taxes in respect of the Provider Fees, such as VAT in Europe) to the Provider within 24 hours of when the Enjoyer arrives at the applicable Activities (except to the extent that a refund is due to the Enjoyer). The time it takes for the Provider to receive payouts may depend upon the payout method chosen by the Provider. Some methods involve the use of third-party payment processors, who may impose their own additional charges for the use of their services on the Provider, including by deducting their charges from the payout amount.
If you owe or agree to pay any amount via Shaka to Shaka (whether as a result of your bookings or actions as an Enjoyer or otherwise), then Shaka may (but is not obliged to) withhold the amount owing to Shaka from any payout amounts due to you as a Provider, and use the withheld amount to setoff the amount owed by you to Shaka. If Shaka does so, then your obligation to pay Shaka will be extinguished to the extent of the amount withheld by Shaka, and Shaka will cease to owe to you any obligations (including, but not limited to, any obligation to pay you) with respect to the amount withheld. In addition to the amount due, if your account is delinquent or you otherwise have chargebacks on your account, you may be charged fees that are incidental to our collection of these delinquent amounts and chargebacks. Such fees or charges may include collection fees, convenience fees, or other third party charges. You hereby explicitly agree that all communication in relation to delinquent accounts will be made by electronic mail or electronic messaging systems, as provided to Shaka by you. Such communication may be made by Shaka or by anyone on its behalf, including but not limited to a third party collection agent.
Appointment of Shaka as Limited Payment Collection Agent for Provider
Each Provider hereby appoints Shaka as the Provider's limited payment collection agent solely for the purpose of accepting the Activities Fees from Enjoyers.
Each Provider agrees that payment made by an Enjoyer through Shaka, shall be considered the same as a payment made directly to the Provider, and the Provider will make the Activities available to the Enjoyer in the agreed-upon manner as if the Provider has received the Activities Fees. Each Provider agrees that Shaka may, in accordance with the cancellation policy selected by the Provider and reflected in the relevant Listing, (i) permit the Enjoyer to cancel the booking and (ii) refund (via Shaka) to the Enjoyer that portion of the Activities Fees specified in the applicable cancellation policy. Each Provider understands that as Shaka accepts payments from Enjoyers as the Provider's limited payment collection agent and that Shaka’s obligation to pay the Provider is subject to and conditional upon successful receipt of the associated payments from Enjoyers. Shaka does not guarantee payments to Providers for amounts that have not been successfully received by Shaka from Enjoyers. In accepting appointment as the limited authorized agent of the Provider, Shaka assumes no liability for any acts or omissions of the Provider.
Please note that Shaka does not currently charge fees for the creation of Listings. However, you as a Provider acknowledge and agree that Shaka reserves the right, in its sole discretion, to charge you for and collect fees from you for the creation of Listings. Please note that Shaka will provide notice of any Listing fee collection via the Site, Application and Services, prior to implementing such a Listing fee feature.
Bookings and Financial Terms for Enjoyers
The Providers, not Shaka, are solely responsible for honouring any confirmed bookings and making available any Activities reserved through the Site, Application and Services. If you, as an Enjoyer, choose to enter into a transaction with a Provider for the booking of Activities, you agree and understand that you will be required to enter into an agreement with the Provider and you agree to accept any terms, conditions, rules and restrictions associated with such Activities imposed by the Provider. You acknowledge and agree that you, and not Shaka, will be responsible for performing the obligations of any such agreements, that Shaka is not a party to such agreements, and that, with the exception of its payment obligations hereunder, Shaka disclaims all liability arising from or related to any such agreements. You acknowledge and agree that, notwithstanding the fact that Shaka is not a party to the agreement between you and the Provider, Shaka acts as the Provider's payment collection agent for the limited purpose of accepting payments from you on behalf of the Provider. Upon your payment of the Total Fees to Shaka, your payment obligation to the Provider for the Activities Fees is extinguished, and Shaka is responsible for remitting the Activities Fees (less the Provider Fees and any Taxes in respect of the Provider Fees, such as VAT in Europe), in the manner described in these Terms. In the event that Shaka does not remit any such amounts as described in these Terms, such Provider will have recourse only against such Shaka entity.
The Total Fees payable will be displayed to an Enjoyer before the Enjoyer sends a booking request to a Provider. As noted above, the Provider is required to either confirm or reject the booking request within the Booking Request Period; otherwise, the requested booking will be automatically cancelled. If a requested booking is cancelled (i.e. not confirmed by the applicable Provider), any amounts collected by Shaka will be refunded to such Enjoyer, depending on the selections the Enjoyer makes via the Site and Application, and any pre-authorization of such Enjoyer's credit card will be released, if applicable.
You as an Enjoyer agree to pay Shaka for the Total Fees for any booking requested in connection with your Shaka Account if such requested bookings are confirmed by the applicable Provider. In order to establish a booking pending the applicable Provider's confirmation of your requested booking, you understand and agree that Shaka, on behalf of the Provider, reserve the right, in its sole discretion, to (i) obtain a pre-authorization via your credit card for the Total Fees or (ii) charge your credit card a nominal amount, not to exceed one dollar ($1), or a similar sum in the currency in which you are transacting (e.g. one euro or one British pound), to verify your credit card. As a general rule, Shaka will collect the Total Fees due once Shaka receives confirmation of your booking from the applicable Provider; if necessary, Total Fees may instead be collected at a later point. Please note that Shaka cannot control any fees that may be charged to an Enjoyer by his or her bank related to Shaka's collection of the Total Fees, and Shaka disclaims all liability in this regard.
In consideration for the use of Shaka's online marketplace and platform, Shaka charges the Service Fees. Where applicable, Taxes (such as VAT in Europe) may also be charged in respect of the Provider Fees and Enjoyer Fees. Shaka deducts the Provider Fees from the Activities Fees before remitting the balance to the Provider as described in these Terms. Enjoyer Fees are, as noted above, included in the Total Fees.
Balances will be remitted by Shaka to Providers in its sole discretion via check, PayPal, direct deposit or other payment methods, as described on the Site or via the Application, in the Provider's currency of choice, depending upon the selections Shaka makes for each Provider via the Site, Application and Services. Shaka in its sole discretion may change the payment methods available on the website. Amounts may be rounded up or down as described the "Rounding Off" section below.
Please note that Shaka, may impose or deduct foreign currency processing costs on or from any payments or payouts by Shaka in currencies other than UK sterling. More information on any such costs or deductions will be available via the Site and Application. More information on Services Fees can be found at www.ridewithlocal.com/help. Except as otherwise provided herein, Service Fees are non-refundable.
General Booking and Financial Terms
Cancellations and Refunds
If, as an Enjoyer, you cancel your requested booking before the requested booking is confirmed by a Provider, Shaka will cancel any pre-authorization to your credit card and/or refund any nominal amounts charged to your credit card in connection with the requested booking within a commercially reasonable time. If, as an Enjoyer, you wish to cancel a confirmed booking made via the Site, Application and Services, either prior to or after arriving at the Activities, the cancellation policy of the Provider contained in the applicable Listing will apply to such cancellation. Our ability to refund the Activities Fees and other amounts charged to you will depend upon the terms of the applicable cancellation policy. Details regarding refunds and cancellation policies are available via the Site and Application. The Enjoyer Fee is non-refundable regardless of the cancellation policy selected by the Provider.
If a Provider cancels a confirmed booking made via the Site, Services, and Application, (i) Shaka will refund the Total Fees for such booking to the applicable Enjoyer within a commercially reasonable time of the cancellation and (ii) the Enjoyer will receive an email or other communication from Shaka containing alternative Listings and other related information. If the Enjoyer requests a booking from one of the alternative Listings and the Provider associated with such alternative Listing confirms the Enjoyer's requested booking, then the Enjoyer agrees to pay Shaka the Total Fees relating to the confirmed booking for the Activities in the alternative Listing, in accordance with these Terms. If a Provider cancelled a confirmed booking and you, as an Enjoyer, have not received an email or other communication from Shaka, please contact Shaka.
If, as a Provider, you cancel a confirmed booking, you agree that Shaka may apply penalties or consequences to you or your Listing, including (i) publishing an automated review on your Listing indicating that a reservation was cancelled, (ii) keeping the calendar for your Listing unavailable or blocked for the dates of the cancelled booking, or (iii) imposing a cancellation fe e (to be withheld from your future payouts or charged to the credit card on file in your Shaka Account). You will be notified of the situations in which a cancellation fee applies before you decide to cancel.
In certain circumstances, Shaka may decide, in its sole discretion, that it is necessary or desirable to cancel a confirmed booking made via the Site, Application and Services. Shaka may also determine, in its sole discretion, to refund to the Enjoyer part or all of the amounts charged to the Enjoyer in accordance with the Enjoyer Refund Policy. You agree that Shaka and the relevant Enjoyer or Provider will not have any liability for such cancellations or refunds.
If, as a Provider, your Enjoyer cancels a confirmed booking or Shaka decides that it is necessary to cancel a confirmed booking, and Shaka issues a refund to the Enjoyer in accordance with the Enjoyer Refund Policy or other applicable cancellation policies, you agree that in the event you have already been paid Shaka shall be entitled to recover the amount of any such Enjoyer refund from you, including by subtracting such refund amount out from any future Activities Fees due to you.
In some instances, Enjoyers may be required to make recurring, incremental payments toward the Total Fees owed for a confirmed booking before beginning his or her applicable Activities (collectively, "Recurring Payments"). More information on Recurring Payments will be made available via the Site, Application and Services, if applicable. If Recurring Payments apply to a confirmed booking, then the Enjoyer authorizes Shaka, on behalf of the Provider, to collect the Total Fees and the Provider agrees that such Shaka entity will initiate payouts to the Provider, in the increments and at the frequency associated with the applicable Recurring Payments, each as identified on the Site, Application and Services.
Shaka may, in its sole discretion, round up or round down amounts that are payable from or to Enjoyers or Providers to the nearest whole functional base unit in which the currency is denominated (e.g. to the nearest dollar, euro or other supported currency); for example, Shaka will round up an amount of £101.50 to £102.00, and £101.49 to £101.00.
Some currencies are denominated in large numbers. In those cases, Shaka may determine the functional base unit in which those currencies are denominated to be 10, 100 or 1,000 of the currency; the corresponding examples for such currencies would be for Shaka to round up an amount of 1,045 up to 1,050 and 1,044 down to 1,040, or 35,450 up to 35,500 and 35,449 down to 35,400, or 837,500 up to 838,000 and 837,499 down to 837,000.
Payment Processing Errors
We will take steps to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the same payment method used for the original payout to or payment by you, so that you end up receiving or paying the correct amount.
Some Providers may pledge to donate a portion of the funds they receive from confirmed bookings made via the Site, Application and Services to a particular cause or charity. We do not take any responsibility or liability for whether the Provider does in fact make the donation he or she pledged to make. In such cases, the Provider in question is responsible for his or her own compliance with all laws and regulations applicable to such pledges and/or fund-raising.
Tax regulations may require us to collect appropriate tax information from our Providers, or to withhold taxes from payouts to Providers, or both and your use of the Site is subject to your acceptance of us taking this approach, as required.
You as a Provider understand and agree that you are solely responsible for determining (i) your applicable Tax reporting requirements, and (ii) the Taxes that should be included, and for including Taxes to be collected or obligations relating to applicable Taxes in Listings. You are also solely responsible for remitting to the relevant authority any Taxes included or received by you. Shaka cannot and does not offer Tax-related advice to any Members.
Where applicable, or based upon request from a Provider, Shaka may issue a valid VAT invoice to such Provider.
You understand and acknowledge that appropriate governmental agencies, departments or authorities (the "Tax Authority") where your Activities are located may require Taxes to be collected from Enjoyers or Providers and to be remitted to the respective Tax Authority. The laws in jurisdictions may vary, but these taxes may be required to be collected and remitted as a percentage of the Activities Fees set by Providers.
Shaka's online platform facilitates bookings between Enjoyers and Providers who may prefer to pay and to receive payments in different currencies, which may require foreign currency conversions to accommodate these differing currency preferences. Although the Shaka platform allows users to view the price of Listings in a number of currencies, the currencies available for users to make and receive payments may be limited, and may not include the default currency in any given geographic location.
Each foreign currency conversion is processed at a foreign currency conversion rate. This rate generally refers to the amount of one currency that must be paid to buy a certain amount of another currency at a given time. For example, if it costs £75 to buy €100.00, the currency conversion rate of GBP to Euros would be 1.33, and the currency conversion rate from Euros to US dollars would be 0.8. Currency conversion rates will vary from time to time.
"Display Currency" means the currency in which users view Listing prices on the Shaka platform. Enjoyers may choose and change the Display Currency in order to view the pricing for a Listing in a number of different supported currencies.
"Booking Currency" means the currency in which an Enjoyer has to pay for his or her booking. At the time the Enjoyer submits a booking request, the Shaka platform will select the Booking Currency, based on the Enjoyer's country of origin and the payment methods available for that country. Shaka supports only a certain number of currencies as Booking Currencies. The Booking Currency for a booking may be different from the relevant Listing Currency.
"Listing Currency" means the currency in which a Listing's price is set. The Listing Currency is set by the Provider.
"Payout Currency" means the currency in which a Provider's payout will be paid to the Provider. The Payout Currency is set by the Provider.
"Base Exchange Rate" means a system-wide rate used by Shaka for foreign currency conversion that is in effect at the time the foreign currency conversion is processed, and does not include any fee or mark-up by Shaka. Shaka establishes the Base Exchange Rate using data from one or more third parties such as OANDA (http://www.oanda.com).
"Adjusted Exchange Rate" means a rate for foreign currency conversion that is calculated by adding a mark-up to the Base Exchange Rate. This mark-up represents a charge imposed by Shaka for its holding costs and foreign currency risks.
Foreign currency conversions on the Shaka platform
Shaka will process a foreign currency conversion in the following situations:
The Display Currency is different from the Listing Currency when a user views a Listing: Shaka will calculate the estimated Total Fees in the Display Currency, by applying either the Base Exchange Rate or the Adjusted Exchange Rate at the time of the view to the estimated Total Fees in the Listing Currency. The Adjusted Exchange Rate will be applied if the Display Currency is a supported Booking Currency, and it is different from the Listing Currency. Otherwise, the Base Exchange Rate will be applied.
The Booking Currency is different from the Listing Currency when an Enjoyer submits a booking request for a Listing: Shaka will calculate the Total Fees in the Booking Currency, by applying either the Base Exchange Rate or the Adjusted Exchange Rate at the time of the booking request to the Total Fees in the Listing Currency. The Enjoyer will be able to view the actual exchange rate applied. The Enjoyer Fee, which is a percentage of the applicable Activities Fees, will be calculated based on the Activities Fees in the Booking Currency (i.e. after conversion from the Listing Currency). The Adjusted Exchange Rate will be applied if the Display Currency is the same as the Booking Currency, and it is different from the Listing Currency for the Listing. Otherwise, the Base Exchange Rate will be applied.
The Payout Currency is different from the Listing Currency when Shaka initiates a payout: generally, Shaka will calculate the payout to the Provider, by applying the Base Exchange Rate on the date that Shaka initiates the payout to the Activities Fees (less Shaka's Provider Fees and any Taxes in respect of the Provider Fees, such as VAT in Europe) in the Listing Currency. The Provider will be able to view the actual exchange rate applied in his or her transaction history in the Site or Application. In some cases where the payout method selected by the Provider involves certain third-party payment processors (such as Western Union), (i) Shaka will send the payout amount to the processor in a major currency (e.g. US dollars), by applying the relevant Base Exchange Rate for the Listing Currency to that major currency, (ii) the Provider will be able to view the payout amount sent by Shaka in that major currency in his or her transaction history in the Site or Application, and (iii) the processor will calculate the actual payout to the Provider by applying its own foreign currency conversion rate for that major currency to the Payout Currency.
When a confirmed booking is modified or cancelled, and there had been a foreign currency conversion when the booking was submitted: the foreign currency conversion for any additional payments required of the Enjoyer or any refund to the Enjoyer will be processed at the same rate as applied to the earlier payment by the Enjoyer.
When you as an Enjoyer submit a booking request for a Listing, you will be able to view the actual exchange rate used to calculate the Total Fees in the Booking Currency. Where the Adjusted Exchange Rate is applied, you will be able to view the mark-up included in the rate. The actual exchange rate (and any mark-up included in the rate) will also be stated in the billing receipt for your booking.
Shaka updates the Base Exchange Rate on a regular basis, but not on a real-time basis. In particular, Shaka does not always change the Base Exchange Rate immediately when its costs of foreign exchange change. Accordingly, the Base Exchange Rate may not be identical to the applicable market rate in effect at the specific time a foreign currency conversion is processed.
Please note that your payment company (for example, your credit or bank card issuer) will use a currency conversion rate for and may impose a currency conversion fee on your payment or payout, if your card or bank account is denominated in a currency that is different from the Booking Currency or the Payout Currency respectively. Similarly, third-party payment processors may also use a currency conversion rate for or impose a currency conversion fee on your payment or payout. All of these currency conversion rates and fees are not controlled by or known to Shaka.
You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Site, Application, Services and Collective Content. In connection with your use of the Site, Application, Services and Collective Content, you may not and you agree that you will not:
violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and Tax regulations;
use manual or automated software, devices, scripts, robots, backdoors or other means or processes to access, "scrape," "crawl" or "spider" any web pages or other services contained in the Site, Application, Services or Collective Content;
use the Site, Application, Services or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms;
copy, store or otherwise access or use any information contained on the Site, Application, Services or Collective Content for purposes not expressly permitted by these Terms;
infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
interfere with or damage our Site, Application or Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
use our Site, Application or Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
use our Site, Application, Services or Collective Content in connection with the distribution of unsolicited commercial email ("spam") or advertisements unrelated to lodging in a private residence;
"stalk" or harass any other user of our Site, Application, Services or Collective Content, or collect or store any personally identifiable information about any other user other than for purposes of transacting as an Shaka Enjoyer or Provider;
offer, as a Provider, any Activities that you do not yourself have the capacity to offer (without limiting the foregoing, you will not list Activities as a Provider if you are serving in the capacity of an agent for a third party);
register for more than one Shaka Account or register for an Shaka Account on behalf of an individual other than yourself;
contact a Provider for any purpose other than asking a question related to a booking, or such Provider's Activities gs;
contact an Enjoyer for any purpose other than asking a question related to a booking or such Enjoyer's use of the Site, Application and Services;
recruit or otherwise solicit any Provider or other Member to join third-party services or websites that are competitive to Shaka, without Shaka's prior written approval;
impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
use automated scripts to collect information from or otherwise interact with the Site, Application, Services or Collective Content;
use the Site, Application, Services or Collective Content to find a Provider or Enjoyer and then complete a booking of Activities independent of the Site, Application or Services, in order to circumvent the obligation to pay any Service Fees related to Shaka's provision of the Services or for any other reasons
as a Provider, submit any Listing with false or misleading price information, or submit any Listing with a price that you do not intend to honour;
systematically retrieve data or other content from our Site, Application or Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
breach our Acceptable Use Policy;
use, display, mirror or frame the Site, Application, Services or Collective Content, or any individual element within the Site, Application, Services or Collective Content, Shaka's name, any Shaka trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Site, Application or Services, without Shaka's express written consent;
access, tamper with, or use non-public areas of the Site, Application or Services, Shaka's computer systems, or the technical delivery systems of Shaka's providers;
attempt to probe, scan, or test the vulnerability of any Shaka system or network or breach any security or authentication measures;
avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Shaka or any of Shaka's providers or any other third party (including another user) to protect the Site, Services, Application or Collective Content;
in any way use the Site, Services, Application or Collective Content to send altered, deceptive or false source-identifying information;
attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services, Application or Collective Content; or
advocate, encourage, or assist any third party in doing any of the foregoing.
accept or make a payment for Activities Fees outside Shaka. If you do so, you acknowledge and agree that you: (i) would be in breach of these Terms; (ii) accept all risks and responsibility for such payment, and (iii) hold Shaka harmless from any liability for such payment.
Shaka has the right to investigate and prosecute violations of any of the above to the fullest extent of the law.
Shaka may access, preserve and disclose any of your information if we are required to do so by law, or if we believe in good faith that it is reasonably necessary to (i) respond to claims asserted against Shaka or to comply with legal process (for example, subpoenas or warrants), (ii) enforce or administer our agreements with users, such as these Terms and the Shaka Provider Guarantee, (iii) for fraud prevention, risk assessment, investigation, customer support, product development and de-bugging purposes, or (iv) protect the rights, property or safety of Shaka, its users, or members of the public. You acknowledge that Shaka has no obligation to monitor your access to or use of the Site, Application, Services or Collective Content or to review or edit any Member Content, but has the right to do so for the purpose of operating and improving the Site, Application and Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes), to ensure your compliance with these Terms, to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body, to respond to content that it determines is otherwise objectionable or as set forth in these Terms. Shaka reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that Shaka, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, Application or Services.
The Site, Application, Services, and Collective Content are protected by copyright, trademark, and other laws of the United Kingdom and foreign countries. You acknowledge and agree that the Site, Application, Services and Collective Content, including all associated intellectual property rights, are the exclusive property of Shaka and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Application, Services, or Collective Content.
Our Services have different products and offerings, so sometimes additional terms or product requirements may apply to your use of those products. For example, additional terms apply if you refer new users to Shaka. If additional terms are available for the relevant product or Services you use, those additional terms become part of these Terms.
Subject to your compliance with these Terms, Shaka grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on each mobile device or computer that you own or control and run such copy of the Application solely for your own personal use. Furthermore, with respect to any App Store Sourced Application (defined below), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple's proprietary operating system) and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service. Shaka reserves all rights in the Application not expressly granted to you by these Terms.
Shaka Content and Member Content License
Subject to your compliance with the terms and conditions of these Terms, Shaka grants you a limited, non-exclusive, non-transferable license, to (i) access and view any Shaka Content solely for your personal and non-commercial purposes and (ii) access and view any Member Content to which you are permitted access, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Site, Application, Services, or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Shaka or its licensors, except for the licenses and rights expressly granted in these Terms.
We may, in our sole discretion, permit you to post, upload, publish, submit or transmit Member Content. By making available any Member Content on or through the Site, Application and Services, you hereby grant to Shaka a worldwide, irrevocable, perpetual (or for the term of the protection), non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content on, through, by means of or to promote or market the Site, Application and Services. Shaka does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Application and Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Application and Services or you have all rights, licenses, consents and releases that are necessary to grant to Shaka the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Shaka's use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and the Services will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
The Site, Application and Services may contain links to third-party websites or resources. You acknowledge and agree that Shaka is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Shaka of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products or services on or available from such websites or resources.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of Shaka used herein are trademarks or registered trademarks of Shaka. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site, Application and Services ("Feedback"). You may submit Feedback by emailing us, through the "Contact" section of the Site and Application, or by other means of communication. You acknowledge and agree that all Feedback you give us will be the sole and exclusive property of Shaka and you hereby irrevocably assign to Shaka and agree to irrevocably assign to Shaka all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback. At Shaka's request and expense, you will execute documents and take such further acts as Shaka may reasonably request to assist Shaka to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
Shaka respects copyright law and expects its users to do the same. It is Shaka's policy to terminate in appropriate circumstances the Shaka Accounts of Members or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Shaka's Copyright Policy for further information.
Suspension, Termination and Shaka Account Cancellation
We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time, decide to limit, suspend, deactivate or cancel your Shaka Account. If we exercise our discretion under these Terms to do so, any or all of the following can occur with or without prior notice or explanation to you: (a) your Shaka Account will be deactivated or suspended, your password will be disabled, and you will not be able to access the Site, Application, Services, your Shaka Account, your Member Content, or receive assistance from Shaka Customer Service, (b) any pending or accepted future bookings as either Provider or Enjoyer will be immediately terminated, (c) we may communicate to your Enjoyers or Providers that a potential or confirmed booking has been cancelled, (d) we may refund your Enjoyers in full for any and all confirmed reservations, irrespective of preexisting cancellation policies, (e) we may contact your Enjoyers to inform them about potential alternate Activities with other Providers that may be available on the Site, Application and Services, and (f) you will not be entitled to any compensation for reservations or bookings (even if confirmed) that were cancelled as a result of a suspension, deactivation or termination of your Shaka Account. You may cancel your Shaka Account at any time via the "Cancel Account" feature of the Services or by sending us an email. Please note that if your Shaka Account is cancelled, we do not have an obligation to return to you any Content you have posted to the Site, Application and Services, including, but not limited to, any reviews or Feedback.
IF YOU CHOOSE TO USE THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT OR PARTICIPATE IN THE REFERRAL PROGRAM, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT SHAKA DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND, DBS OR OTHER OFFENDER CHECKS ON ANY MEMBER, INCLUDING, BUT NOT LIMITED TO, ENJOYERS AND PROVIDERS, BUT MAY CONDUCT SUCH BACKGROUND OR REGISTERED SEX OFFENDER CHECKS IN ITS SOLE DISCRETION. THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT AND REFERRAL PROGRAM ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, SHAKA EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. SHAKA MAKES NO WARRANTY THAT THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT, INCLUDING, BUT NOT LIMITED TO, THE LISTINGS OR ANY ACTIVITIESS, OR THE REFERRAL PROGRAM WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. SHAKA MAKES NO WARRANTY REGARDING THE QUALITY OF ANY LISTINGS, ACTIVITIESS, PROVIDERS, ENJOYERS, YOUR ACCRUAL OF SHAKA TRAVEL CREDITS, THE SERVICES OR COLLECTIVE CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE SITE, APPLICATION, SERVICES OR REFERRAL PROGRAM.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SHAKA OR THROUGH THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY PROVIDERS OR ENJOYERS. YOU UNDERSTAND THAT SHAKA DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE, APPLICATION OR SERVICES OR TO REVIEW OR VISIT ANY ACTIVITIESS. SHAKA MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE, APPLICATION OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE, APPLICATION OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ENJOYERS AND PROVIDERS, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON REGARDLESS OF WHETHER SUCH MEETINGS ARE ORGANIZED BY SHAKA. NOTWITHSTANDING SHAKA'S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF THE PROVIDERS FOR THE PURPOSE OF ACCEPTING PAYMENTS FROM ENJOYERS ON BEHALF OF THE PROVIDERS, SHAKA EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY ENJOYER OR OTHER THIRD PARTY.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATION, SERVICES AND COLLECTIVE CONTENT, YOUR LISTING OR BOOKING OF ANY ACTIVITIESS VIA THE SITE, APPLICATION AND SERVICES, YOUR PARTICIPATION IN THE REFERRAL PROGRAM, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF SHAKA WHETHER IN PERSON OR ONLINE REMAINS WITH YOU. NEITHER SHAKA NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT OR THE REFERRAL PROGRAM WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE, APPLICATION, OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION, SERVICES, OR YOUR PARTICIPATION IN THE REFERRAL PROGRAM OR FROM YOUR LISTING OR BOOKING OF ANY ACTIVITIES VIA THE SITE, APPLICATION AND SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SHAKA HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
EXCEPT FOR OUR OBLIGATIONS TO PAY AMOUNTS TO APPLICABLE PROVIDERS PURSUANT TO THESE TERMS, IN NO EVENT WILL SHAKA'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SITE, APPLICATION AND SERVICES INCLUDING, BUT NOT LIMITED TO, FROM YOUR LISTING OR BOOKING OF ANY ACTIVITIES VIA THE SITE, APPLICATION AND SERVICES, OR FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICES, OR COLLECTIVE CONTENT OR YOUR PARTICIPATION IN THE REFERRAL PROGRAM AND IN CONNECTION WITH ANY ACTIVITIES OR INTERACTIONS WITH ANY OTHER MEMBERS, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR BOOKINGS VIA THE SITE, APPLICATION AND SERVICES AS A ENJOYER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR IF YOU ARE A PROVIDER, THE AMOUNTS PAID BY SHAKA TO YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED U.S. DOLLARS (US$100), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SHAKA AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. NOTHING IN THE AFOREMENTIONED CLAUSE SHALL SEEK TO EXCLUDE OR LIMIT LIABILITY WHERE SUCH EXCLUSION OR LIMITATION IS RESTRICTED OR PROHIBITED BY LAW.
You agree to release, defend, indemnify, and hold Shaka and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Site, Application, Services, or Collective Content or your violation of these Terms; (b) your Member Content; (c) your (i) interaction with any Member, (ii) booking of an Activities, or (iii) creation of a Listing; (d) the use, condition or rental of an Activity by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of a rental, booking or use of Activities; and (e) your participation in the Referral Program.
Accessing and Downloading the Application from iTunes
The following applies to any Application accessed through or downloaded from the Apple App Store ("App Store Sourced Application"):
You acknowledge and agree that (i) these Terms are concluded between you and Shaka only, and not Apple, and (ii) Shaka, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Services.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Shaka and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Shaka.
You and Shaka acknowledge that, as between Shaka and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and Shaka acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party's intellectual property rights, as between Shaka and Apple, Shaka, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
You and Shaka acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
Without limiting any other terms of these Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
If you used Activities of anyone who you feel is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to Shaka by contacting us with your police station and report number; provided that your report will not obligate us to take any action beyond that required by law (if any) or cause us to incur any liability to you.
These Terms constitute the entire and exclusive understanding and agreement between Shaka and you regarding the Site, Application, Services, Collective Content, and any bookings or Listings of Activitiess made via the Site, Application and Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Shaka and you regarding bookings or listings of Activitiess, the Site, Application, Services, and Collective Content.
You may not assign or transfer these Terms, by operation of law or otherwise, without Shaka's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Shaka may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Shaka (i) via email (in each case to the address that you provide) or (ii) by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Controlling Law and Jurisdiction
These Terms will be interpreted in accordance with the laws of England and Wales. You and we agree to submit to the exclusive jurisdiction of the English courts for resolving any dispute between the parties. Notwithstanding the above, if Shaka wishes to enforce any of its rights against you, we may elect to do so in the English courts or in the courts of the jurisdiction in which you are resident.
The failure of Shaka to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Shaka. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
Third party beneficiary
These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties. Notwithstanding the foregoing, the parties agree that the payment card networks are third party beneficiaries of these Terms for purposes of enforcing provisions related to payments, but that their consent or agreement is not necessary for any changes or modifications to these Terms.
If you have any questions about these Terms or any App Store Sourced Application, please contact Shaka.