TERMS OF USE
September 12, 2022
This Terms of Service Agreement (“Agreement”) is a binding contract between you (”Customer”, “you”, or “your”) and One California Day Co. (”One California Day”, “we”, or “us”). This Agreement governs your access to and use of our Website, Services and Documentation.
BY PURCHASING ANY TRIP PACKET OR SERVICE YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT AUTHORIZED TO USE THE WEBSITE OR OUR ONLINE SERVICES, OR PURCHASE OUR TRIP PACKETS.
1. DEFINITIONS.
(a) ”Customer” has the meaning set out above, and includes you, your employees, consultants, contractors, and agents and those for whom the Services and Trip Packets have been purchased, and all of your guests.
(b) “Website” means any content or information therein, any subdomains of the website, and any other website pages on which Services are provided by us.
(b) ”Services” means the services provided by One California Day under this Agreement that are detailed on One California Day website available at www.onecaliforniaday.co.
(c) ”Documentation” means One California Day guides and itineraries relating to the Services provided by One California Day to Customer either electronically or in hard copy form, and includes the Trip Packets.
(d) ”Intellectual Property” means the Website, Services and the Documentation and all intellectual property provided to Customer in connection with the foregoing.
(e) ”Third-Party Services” means any products, content, services, information, websites, facilities, events, locations, parks, walks, buildings, tours, entertainment, foods, beverages, food stuffs, food services, merchandise, reservations, or any other goods and services whatsoever that are offered or sold to you by a third party, including without limitation any and all suggestions or recommendations provided for or included in the Services or itemized in a Trip Packets.
(f) “Trip Packet” means the trip itinerary, recommendations, and suggestions and all assorted and related documentation, descriptions, maps, images, and any other documents that we provide to you as a part of the Services.
2. INTELLECTUAL PROPERTY, ACCESS AND USE:
(a) Provision of Access. Subject to and conditioned on your payment of Fees and compliance with all other terms and conditions of this Agreement, One California Day hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use of the Services and the Documentation solely for your personal use in accordance with the terms and conditions of this Agreement.
(b) Use Restrictions. As between you and us, we own all right, title, and interest, including all intellectual property rights, in and to the Website, Services and the Documentation. You shall not use the Website, Services or Documentation for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit anyone to: (i) reproduce, redistribute, duplicate, copy, sell, resell, or exploit for any commercial purpose any portion of the Website or the content or any access to or use of the Website or the content, except as expressly authorized by us in writing; (ii) copy, modify, or create derivative works of the Documentation, in whole or in part; (iii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Documentation except as expressly permitted under this Agreement; (iii) remove any proprietary notices from the Website, Services or Documentation; or (iv) use the Website, Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule; (v) access, use, or copy any portion of the Website or its content through the use of bots, spiders, scrapers, web crawlers, indexing agents, or other automated devices or mechanisms. You agree not to remove or modify any copyright notice or trademark legend, author attribution, or other notice placed on or contained within any of the content.
(c) Submissions: If you or any of your employees, contractors, and agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), all such Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
(d) Reservation of Rights. One California Day reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the One California Day Intellectual Property.
3. PRIVACY POLICY. One California Day complies with its privacy policy available at www.onecaliforniaday.co/privacy-policy (”Privacy Policy”), in providing the Services. The Privacy Policy is subject to change as described in the Privacy Policy. By accessing, using, and providing information to or through the Services, you acknowledge that you have reviewed and accepted our Privacy Policy, and you consent to all actions taken by us with respect to your information in compliance with the current version of our Privacy Policy.
4. FEES, PAYMENT AND PURCHASE POLICIES. In exchange for the Services, you agree to pay us the fees as set out at the time of purchase (the ”Fees”). All payments must be submitted with a major credit card unless otherwise expressly stated. The total price will be billed in U.S. Dollars. All purchases are final and non-refundable.
5. PROMOTIONAL AND OTHER INFORMATION
(a) Promotions. We may make information regarding specific offers or promotions which we are conducting available on the Website. Any such offer or promotion is subject to the specific terms, conditions and restrictions listed on the Website in connection with offer or promotion. We reserve the right to alter or withdraw any offer or promotion at any time. Each offer and promotion is void where prohibited by law. Please refer to and read carefully the terms, conditions and restrictions included on the Website in connection with each offer or promotion.
(b) Inaccuracies. This Website may contain technical inaccuracies and typographical errors, including but not limited to inaccuracies relating to pricing or availability applicable to your transaction. We do not assume responsibility or liability for any such inaccuracies, errors or omissions, and shall have no obligation to honor information affected by such inaccuracies. We reserve the right to make changes, corrections, cancellations and/or improvements to the Website, and to the products and programs described on the Website, at any time without notice, including after confirmation of a transaction.
6. SECURITY. One California Day takes such commercially reasonable measures as it deems appropriate to secure and protect information transmitted to and from the Website. Nevertheless, we cannot, and do not, guarantee that any such transmissions are or will be totally secure. We make no warranty or representation regarding the confidentiality of any communication or information transmitted on this Website or any site linked to this Website. You agree that neither us, nor any Third-Party Service providers related to this Website, are responsible for the confidentiality of any information, (including without limitation credit card information, personally identifiable information, email address, phone number, etc.), and neither we, nor any other Third-Party Service providers related to this Website, are responsible for any damages that may arise from disclosure of such information. You are responsible for maintaining the confidentiality of any information about you, used in connection with your use of the Website.
7. HYPERLINKS.
(a) Links to Our Website: If you link to the Website, you agree that you will not misrepresent your relationship with us or present false or misleading impressions about us. No hyperlinks to the Website may be used in a manner that implies or suggests that One California Day approves or endorses you, your website, or your goods and services. We will have no responsibility or liability for any content appearing on your website. No hyperlink may appear on any page on your website or within any context containing content or materials that may be interpreted as libelous, obscene, or criminal, or which infringes, otherwise violates, or advocates the infringement or other violation of, any third party rights.
We reserve the right, at any time and in our sole discretion, to request that you remove from your website all hyperlinks or any particular hyperlink to the Website. We may at any time, in our sole discretion, with or without cause, withdraw your right to link to any pages on the Website. Upon our request, you agree to immediately remove all hyperlinks to the Website. Thereafter, your posting of any future hyperlinks to the Website will require our express written permission.
(b) Links to Third-Party Websites: This Website may contain hyperlinks to websites operated by parties other than One California Day. Such hyperlinks are provided for your reference only. We do not control such websites and are not responsible for their contents or the privacy or other practices of such websites. Further, it is up to you to take precautions to ensure that whatever links you select or software you download (whether from this Website or other websites) is free of such items as viruses, worms, trojan horses, defects and other items of a destructive nature. Our inclusion of hyperlinks to such websites does not imply any endorsement of the material on such websites or any association with their operators.
8. CUSTOMER RESPONSIBILITIES.
(a) Travel and Risk. You acknowledge and agree that travel of any kind involves inherent risk and by purchasing and participating in the Trip Packets experience and using the Services you accept those risks voluntarily. You are responsible for your own travel to and from all destinations and agree to obey all traffic and other laws from all governmental authorities. You acknowledge that it is your responsibility to purchase the appropriate travel and health insurance. You acknowledge and agree that all destinations are owned and operated by third parties not affiliated with us, and you agree that your use of our suggestions, destinations and itineraries is at your own risk.
(b) Weather and Conditions. Conditions and weather may vary day to day, season to season and between the start of any excursion and its conclusion. Such changes may affect the risk, safety and availability of travel, destinations and excursions. You accept full responsibility for determining if conditions are safe for travel, whether or not Third Party Services are safe or adequate for consumption and use, and whether or not destinations, excursions and other suggestions are safe or adequate for your use.
(c) Third-Party Services. The Services may relate to Third-Party Services. For purposes of this Agreement, such Third-Party Services are subject to their own terms and conditions presented to you by the third-party provider in accordance with such provider’s usual method of business.
You acknowledge and agree that all destinations, excursions and suggestions listed in the Trip Packets are operated by third parties and not affiliated with us, and you agree to treat all of the third-party owners and operators with respect and to obey any rules and regulations that such third-party owners and operators may put in place with respect to the Third Party Services, including without limitation, any rules and regulations pertaining to safety. If you do not agree to abide by the applicable terms for any such Third-Party Services, then you should not access, or use such Third-Party Services.
(d) COVID-19 Risk. Further to the above, COVID-19 is a communicable disease that is present in the United States and is a risk to travel in the State of California, and the United States in general. By using the Services, you acknowledge and accept this risk. It is your responsibility to follow all local guidelines and regulations made by any governmental body, including, without limitation, any local health officers or health guidelines relating to COVID-19, and it is your responsibility to determine if it is safe for you to travel in spite of these risks.
9. WARRANTY DISCLAIMER: THE SERVICES ARE PROVIDED “AS IS” AND ONE CALIFORNIA DAY SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ONE CALIFORNIA DAY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ONE CALIFORNIA DAY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
10. LIMITATIONS OF LIABILITY.
(a) IN NO EVENT WILL ONE CALIFORNIA DAY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; OR (d) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER ONE CALIFORNIA DAY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL ONE CALIFORNIA DAY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO ONE CALIFORNIA DAY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $100, WHICHEVER IS LESS.
(b) One California Day shall not be responsible for any injuries, losses or damages in connection with social or labor unrest, diseases, local laws, terrorists acts, bankruptcy or cessation of supplier services, climatic conditions, Acts of God, delays, changes or cancellation of travel due to weather conditions, hotel services, accidents or health related problems before or while in-transit to (e.g., an accident on the way to a trip), during, and after a trip, or any other actions, omissions, or conditions which are outside of the direct control of One California Day.
(c) The individual suppliers and partners are independent contractors and not agents or employees of One California Day. One California Day is not liable for the acts, errors, omissions, representations, warranties, breaches or negligence of any such suppliers or partners or for any personal injuries, death, property damage, or other damages or expenses resulting therefrom.
(d) In no event shall One California Day and/or their respective suppliers or partners be liable for any direct, indirect, punitive, incidental, special or consequential damages arising out of, or in any way connected with, the services or use this Website (including, but not limited to, your reliance upon opinions appearing on this Website; any computer viruses, information, software, linked sites, products and services obtained through this Website; or otherwise arising out of the access to, display of or use of this Website) whether based on a theory of negligence, contract, tort, strict liability, consumer protection statutes, or otherwise. You hereby waive any and all rights to bring any claim or action related to this website beyond one (1) year after the first occurrence of the kind of act, event, condition or omission upon which such claim or action is based.
11. INDEMNIFICATION. Customer shall indemnify, hold harmless, and, at One California Day’s option, defend One California Day and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses arising from, or relating to, any third-party claim based on Customer’s negligence or wilful misconduct; provided that Customer may not settle any third-party Claim against One California Day unless One California Day consents to such settlement, and further provided that One California Day will have the right, at its option, to defend itself against any such third-party claim or to participate in the defense thereof by counsel of its own choice. You acknowledge that the extent of this indemnity extends to any person who you are responsible for at law, including any person who you invite to use the Services with you.
12. DISPUTES. One California Day is committed to customer satisfaction, so if you have a problem or dispute, we will do our best to resolve your concerns. But if we are unsuccessful, you may pursue claims as explained in this section. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all statements of work, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided hereunder, and all contemplated transactions, will be resolved by binding arbitration, rather than in court, except you may assert Claims on an individual basis in small claims court if they qualify. This also includes any Claims that arose before you accepted this Agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including statutory damages, attorneys’ fees and costs), and must follow and enforce this Agreement as a court would.
13. SURVIVAL The limitation of liability reflects the allocation of risk between the parties. The limitations specified will survive and apply even if any limited remedy specified in the Agreement is found to have failed of its essential purpose. The limitations of liability provided in this Agreement are to the benefit of One California Day and/or their respective suppliers and partners.
14. MODIFICATIONS TO AGREEMENT AND WEBSITE. You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement and the Website from time to time, and that modified terms become effective upon our posting of the modified Agreement on the Website. You will be notified of modifications through notifications or posts on www.onecaliforniaday.co. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms.
15. GOVERNING LAW. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether founded in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of California and the federal laws of the United States of America applicable therein, without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent via email to support@onecaliforniaday.co. You hereby consent to receiving electronic communications from us at the contact email that you provided to us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.
17. QUESTIONS. Please contact us with any questions regarding the Website or this Agreement at support@onecaliforniaday.co.
18. ACKNOWLEDGEMENT. BY ACCESSING AND USING THE WEBSITE, YOU AGREE TO BE BOUND BY THIS AGREEMENT.