Last updated: February 1, 2018.
1. Description of Service
The Service includes our operation of the Website (a platform that allows registered users (“Guests”) to book activities (“Experiences”) with other users (“Hosts”) who host and present those Experiences to Guests) as well as our operation of other services to benefit Members, including the facilitation of payments. We call Hosts and Guests together “Members.” All Hosts are registered Guides in cases where the Experiences they offer require them to be registered Guides. While we do our best to find Hosts who will provide excellent Experiences, we do not and cannot guarantee that Guests will be satisfied with every Experience or every Host. By permitting Hosts to use the Service, we do not endorse them.
Back40 itself does not create, organize or provide Experiences. Hosts alone are responsible for the creation, organization and provision of Experiences. When Guests book Experiences with Hosts, Guests and Hosts are entering into agreements with each other that are separate from these Terms and Back40 is not a party to those separate agreements. Back40 does not act as an agent for any Members.
2. Your Use of the Service
By visiting the Website or otherwise using the Service, you agree to be bound by these Terms and any future changes to these Terms. These Terms are effective as of the “Last updated” date above.
You may use the Website only if you are at least eighteen years old and can form a binding contract with us, and only in compliance with these Terms and all applicable laws. Wherever the Website asks you to provide information, you must provide accurate information.
We reserve the rights to monitor your use of the Service to determine compliance with these Terms, to deny the use of the Service to any person who we believe in our sole discretion to be in violation of these Terms, and to suspend or terminate the Service to you or to any other person for any lawful reason at any time.
3. Account Registration
You must create an account (“Back40 Account”) to book an Experience as a Guest or to offer Experiences as a Host. If you create an account on behalf of a company or other legal entity, you represent and warrant that you have the legal authority to bind that entity to these Terms. The information that you submit to us in your profile must be entirely accurate and complete and must remain so throughout your use of the Service. You may not transfer your Back40 Account to any other person or organization without our prior consent.
All Member profiles are visible to all other Members. In addition, Host profiles are visible to non-Members who browse the Website. You agree to keep your Back40 Account credentials secure and not disclose them to third parties. You will immediately notify us if you believe your credentials have been lost or used without your consent by any other person. You are liable for all activities undertaken through your Back40 Account.
4. Term and Termination
These Terms are effective beginning when you first visit the Website or create a Back40 Account and continue for a 30-day term, at the end of which the Terms will automatically renew for subsequent 30-day terms until you terminate your Back40 Account or we terminate these Terms as the Terms themselves allow.
We reserve the right to terminate your Back40 Account (a) immediately and without providing you any refunds for any prepaid fees if you violate any of these Terms or any other rules or policies that we may establish in connection with the Service or (b) on 30 days’ written notice to you for any reason (in which case you will be provided with a refund of any prepaid fees).
We charge fees to Guests when they book Experiences with Hosts. We do not charge a fee for Website visitors, Guests or Hosts to browse Experiences or other content or to maintain Back40 Accounts. We do not charge Hosts a fee to offer Listings, but we charge Hosts a fee for each booking made by a Guest.
Any applicable fees (including any applicable taxes) will be displayed to Guests before they book Experiences. You are responsible for paying any fees that you owe to us. Fees are non-refundable once paid unless we have stated otherwise.
As a Host or Guest, you are solely responsible for your own compliance with all tax laws in connection with any payments that you make or receive in connection with the Service.
6. Bookings, Cancellations and Refunds
Hosts use the Service to publish descriptions of Experiences (“Listings”) that they offer to Guests. Guests book Experiences described in those Listings by following the booking process that the Website provides. When a Guest books an Experience with a Host, the Guest and Host are entering into a new and legally binding agreement with each other, separate from these Terms, and Back40 is not a party to that agreement. You hereby agree to any additional procedures and rules regarding bookings and payments that the Website may communicate to you.
Hosts and Guests make bookings and make and receive payment via Stripe Connect, the third-party service that we use for payment transactions and which is incorporated into the Website. By using the Service, you agree to use Stripe Connect in accordance with its own terms of service as those terms may change from time to time. Stripe Connect may store your credit card information, but Back40 itself does not.
6.1. Cancellation by Guests
Generally, Guests can cancel an already-confirmed booking with a cancellation fee up to forty-eight hours before the scheduled start time of the Experience (as described in its Listing). In some circumstances, however, an Experience may require a Host to spend his or her own funds to invest in providing the Experience more than forty-eight hours before the Experience’s start time (for example, a Host may need to secure permits to a public park well before bringing a Guest there). In these cases, if a Host has indicated a different cancellation policy in his or her Experience Listing, Guests agree to those other cancellation policies.
6.2. Cancellation by Hosts
If a Host cancels an already-confirmed booking (except as provided in section 6.3), (a) the Guest will be refunded all fees the Guest has paid for the booking, but Back40 will not be liable for any other damages or losses relating to the cancellation[g], (b) Back40 may indicate on the Host’s account page or in future Host Listings that the Host cancelled the booking; and (c) Back40 may impose a cancellation fee on the Host.
6.3. Cancellation for Good Cause
In limited circumstances, a Host or Back40 may cancel bookings where the Host or Back40 deem it necessary to protect the safety of a Host, a Guest or a third party. These circumstances may include inclement weather or other events that arise after a booking has been created. In such circumstances, neither Hosts nor Guests will be entitled to cancellation fees or any other damages from Back40. Back40 takes its Members’ safety seriously and reserves the right to keep Members out of potentially unsafe circumstances. This is a risk inherent in the nature of the adventurous Experiences that our Hosts provide.
7. Terms Applicable to Hosts Only
7.1. Basic Host Policies
As a Host, you are an independent contractor of Back40 and not an employee, partner, joint venturer or agent of Back40. You act exclusively on your own behalf and not on behalf of Back40 or for its benefit. You will not represent yourself to the public as an agent or employee of Back40.
All of the information contained in your Listings must be complete and accurate, including the description of the Experience, any restrictions or limitations on it (e.g., whether it is not suitable for Guests with mobility restrictions, or whether it requires Guests to have their own certifications, skills or background), its location and information about the schedule of its availability. Your Listings must appropriately disclose to Guests any risks inherent in them. Your Listings must disclose to Guests whether they are expected to bring any of their own gear, equipment, clothing or other items necessary to enjoy the Experience or to participate safely in it (e.g. life preservers, canoe paddles, fishing gear, hiking poles).
In connection with Experiences, you agree to impose on Guests any restrictions on their own use of alcohol or other drugs (even where such use of alcohol or other drugs may be permissible under local law) that (a) may be customary or required in your profession (e.g. rules against consumption of alcohol while SCUBA diving) or (b) that you in your sole judgment deem appropriate for safety or for Guests’ enjoyment of the Experience.
You will keep your Listing information up to date at all times, and you will abide by any other policies that Back40 has or implements in the future regarding Listings or Hosts.
You have sole responsibility for setting the price of the Experiences you offer, and you may not charge a higher price for an Experience after a Guest has booked it.
When you accept a Guest’s booking of your Experience, you are forming a legally binding agreement with that Guest. You must then provide the Experience to the Guest as you described it in your Listing, and you must honor all applicable terms including cancellation policies.
You represent and warrant that you will have at all times that you are a Back40 Member any and all professional certifications and licenses that are required for you to offer the Listings you offer or to provide the Experiences you provide. You further represent and warrant that (a) you will secure any permits or other authorizations that may be required for you and your Guests to participate in Experiences (e.g. passes to parks) and (b) your Listings and your provision of Experiences will not violate any laws (including laws against discrimination) or any conditions of any professional licenses that you may have or any agreements that you may have with third parties. You will be required to submit proof of your professional certifications and/or licenses to Back40 in order to publish Listings. If you lose any such professional certifications or licenses or if any of them are suspended at any time while you are a Member, you will inform Back40 of such event within twenty-fours after it happens.
The terms of your Listings may not conflict with anything in these Terms.
You agree to obtain and maintain adequate insurance coverage for yourself as a Host. You also agree to clearly communicate to Guests whether your Host insurance offers any coverage to Guests and if so, the nature and levels of such coverage.
7.2. Your Use of Third Parties to Provide Experiences
You may not fully delegate your duties under these Terms, including your provision of Experiences, to any third parties. That is, if your Listing says that you personally will provide an Experience, you yourself must provide it. However, you may permit your employees, independent contractors, interns, volunteers or any other third parties to assist you in the provision of Experiences if necessary for Guests to enjoy them (e.g., if a large group of Guests books an Experience and you believe it would be more appropriate to retain an additional, qualified individual to assist you). If you do so, then (a) you will require those third parties to comply with all of your obligations under Section 7.1 (including, without limitation, obligations regarding professional certifications and licenses); (b) you will be responsible for such compliance; and (c) you will obtain appropriate insurance for those third parties. These third parties are not required to be Back40 Members.
8. Terms Applicable to Guests Only
As a Guest, you should carefully review the description of any Experience before booking it. You agree to ask the Host about any questions you may have about an Experience before booking it, and to disclose to the Host any medical or physical conditions that you have that may affect the ability of you or any other Guests to participate in the Experience.
You agree to comply with any rules that your Host may impose and communicate to you about your use of alcohol or any other drugs during the Experience or otherwise. You further agree to comply with all laws, including laws regarding your use of alcohol and other drugs, regardless of what rules your Host may communicate to you. During an Experience a Host may take you onto property (private property, state or national parks or other property) owned by third parties, and you agree to comply with any rules imposed by the owners of that property. You agree to comply with all reasonable instructions that a Host may give you in connection with the Experience, including but not limited to safety instructions.
If you book an Experience on behalf of yourself as well as any other individuals, you will ensure that each other individual meets any requirements or conditions that the Host may communicate to you or post on the Website and agrees to those terms. If you book an Experience on behalf of a minor, you represent and warrant that you have the legal ability to act on the minor’s behalf and that you or another adult Guest will accompany the minor in the Experience.
9. Member Code of Conduct
At all times in the course of using the Service, including online interactions as well as in bookings and during Experiences, Members will not:
a) Threaten, abuse, harass, stalk, defame or otherwise act in an offensive manner toward any Member or any other person, or disrupt the Service;
b) Infringe on any person’s privacy, intellectual property or other rights;
c) Solicit business or investment from any other Member, or contact another Member for purposes unrelated to these Terms or to an Experience; or
d) Violate any laws or these Terms.
Any Host or Guest with a dispute with another Member about any aspect of the Service, including bookings, Experiences or cancellations, may contact Back40 for assistance in resolving the dispute. Back40 will make reasonable efforts to assist Members in resolving any such disputes but does not and cannot guarantee any particular outcome to them.
11. Limitation of liability; Disclaimer of Warranties
You use the Service at your own sole risk. We provide the Service “as is,” without any warranty of any kind, express or implied, relating to or arising from the Service or any Experience or any Member. You agree that before using the Service or participating in any Experience you had the opportunity to investigate the Service to the extent you wished.
We and our employees, agents, independent contractors, officers, directors, successors and assigns will not be liable to any Member or to any other person for any damages (whether direct, indirect, special, incidental, consequential, punitive or other, in an action of contract, tort or otherwise) arising from the Service.
If we choose to conduct background checks or other investigations of any Members, we do not warrant that those efforts will identify previous misconduct by a Member.
Some of the Experiences and other aspects of the Service carry inherent risks. Many Experiences will be conducted outdoors in the natural environment. In some Experiences, you or other individuals may be using firearms, vehicles, boats, sporting equipment and other inherently dangerous items. You (a) assume full responsibility for any risk of death, bodily injury, property damage, business losses or other harms and losses, whether personal, economic or otherwise in nature, relating to the Service or to any Experience, whether cause by the negligence of Back40 and/or its employees, officers, directors, independent contractors, agents and successors (collectively, “Releasees”) or otherwise and (b) release, waive and discharge any claims or causes of action you may have against any Releasee relating to the Service or to any Experience.
The limitations and warranty provisions in these Terms are effective to the full extent permitted by law, and they will continue in effect after the termination of your participation in the Service.
This Section 11 extends to all acts of negligence by the Releasees and is intended to be as inclusive as Maine law permits. By using the Service you confirm that you have read this Section, fully understand it, have had the opportunity to discuss it with legal counsel of my choice, understand that through it you are giving up substantial rights, and intend to completely and unconditionally release liability to the greatest extent permitted by Maine law.
You will indemnify and hold us harmless from and against any and all claims, actions or demands, liabilities and settlements, as well as third party claims and causes of action, including, without limitation, attorneys’ fees, resulting from your violation of these Terms or your use of the Service. You will bear the sole financial burden in connection with any such defense, including, without limitation, providing us with such information and access to you as we deem necessary.
13. Third-party materials
14. Member Content
The Service may invite or allow you to submit photographs and/or videos (e.g. Hosts’ own photographs or videos of the locations where they provide Experiences) or textual information (Listings, reviews of Experiences, or otherwise) to the Website. We refer to all of these materials as “Member Content”. By submitting Member Content to us, you:
a) Grant to us a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, sub-licensable and transferable license to that Member Content to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, and otherwise exploit in any manner that Member Content to provide and/or promote the Service, in any media or platform. Back40 does not claim any ownership rights in Member Content; and
b) Represent and warrant that you own or have the necessary licenses and permissions to submit the Member Content (including permission from any other individuals shown or described in the Member Content) and make the grant in this Section 14. This means, for example, that you are not infringing on any other person’s intellectual property rights by doing so.
We reserve the right to review and approve all Member Content and edit it before publishing it on the Website. We do not guarantee that we will post all Member Content that Members submit, and we do not review Member Content for accuracy when we post it.
15. Procedure for Reporting Infringements of Copyright under the Digital Millennium Copyright Act, 17 U.S.C. 512 (“DMCA”)
Back40 respects the intellectual property rights of others and expects Members to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If you believe that any photographs, videos, textual material or any other material accessible through the Website (we refer to all of the foregoing as “Content”) infringe on your intellectual property rights, you may provide our designated copyright agent (“Designated Agent”) with the following information (a Notice of Claimed Infringement, or “NOCI”) in accordance with the Digital Millennium Copyright Act:
(i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf;
(ii) identification of the copyrighted work claimed to have been infringed (or if this is a single notification of a copyright infringement claim covering multiple copyrighted works on the Website, as permitted under the Digital Millennium Copyright Act, 17 U.S.C. 512, a representative list of such works on the Website);
(iii) identification of the Content that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
(iv) your contact information, including your address, telephone number, and an email address;
(v) a statement of your good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) a statement made under penalty of perjury that the information in the notification is accurate and that you are authorized to act on behalf of the copyright owner.
Our Designated Agent is:
Attn: Copyright Agent for Back40
If you fail to comply with all of these notice requirements, your NOCI may not be valid.
When the Designated Agent receives a proper NOCI, we will promptly investigate the claim and take the action that we in our sole discretion deem appropriate. This may include, without limitation: (1) removing or disabling access to the Content identified in the NOCI; (2) notifying the applicable Member that we have removed or disabled access to such material; or (3) terminating that Member’s account.
Only notices of suspected intellectual property rights infringement should be sent to the Designated Agent.
Procedure to Supply a Counter-Notice to the Designated Agent
If you as a Member receive notice from us that we have removed or disabled access to Content created by you pursuant to the Digital Millennium Copyright Act, and you believe that that Content was not infringing, or if you believe you have obtained all required rights from their owners, the owners’ agent, or pursuant to the law, you may send a counter-notice to the Designated Agent containing:
1. your physical or electronic signature;
2. identification of the Content that has been removed or to which access has been disabled and the location at which it appeared before it was removed or access to it was disabled;
3. a statement, under penalty of perjury, that you have a good-faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content to be removed or disabled; and
4. your name, address, telephone number, e-mail address and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside the United States, for any judicial district in which Back40 may be found, and that you will accept service of process from the person who provided the NOCI to Back40 or such person’s agent.
If a counter-notice is received by the Designated Agent, we may send a copy of the counter-notice to the original complaining party informing the complaining party that we may replace the removed Content, cease disabling it and/or reinstate cancelled orders in ten business days following receipt of the counter-notice unless the complaining party notifies the Designated Agent that it has filed an action seeking a court order to restrain the Service user from engaging in infringing activity relating to the Content that was the subject of the NOCI.
You do not have any rights with respect to the Service or Back40 except those expressly provided by these Terms. These Terms do not confer any rights or remedies on any person other than the parties.
These Terms will be governed by the laws of Maine. Before taking any legal action against us, you will contact us in a good faith effort to resolve your dispute. If you do later take legal action, any such action will be resolved by binding arbitration conducted by a mutually agreed service in Maine. If we fail to reach agreement as to an arbitrator, either we or you may bring an action against the other in a court of competent jurisdiction in Maine.
The failure of either party to enforce any provisions of these Terms is not a waiver of the provisions or of the right of that party to subsequently enforce that provision or any other provision. Should any provision of these Terms be or become unenforceable under applicable law, the other provisions shall remain in effect.
These Terms inure to the benefit of the parties’ successors and assigns. You may not assign or delegate any rights or duties that these Terms impose on you.
These Terms are the entire agreement between us and you about the Service. They replace any other prior oral or written agreements between us and you about the Service. If any provision of these Terms is held invalid or unenforceable, that provision will be struck and its striking will not affect the enforceability of any other provision.