MANIFEST PARTICIPANT AGREEMENT
This Manifest Participant Agreement (the “Agreement”) is entered into by and between Beskapes, Inc., a Delaware corporation doing business as Manifest (“Manifest,” “we,” “us,” “our”) and you (“Participant,” “you,” “your”), and governs your use and enjoyment of the services, benefits and privileges provided to you (the “Services”) under the Manifest program (the “Program”).
The person entering into this Agreement represents that such person is at least twenty-one (21) years of age, is not a person barred from receiving Services under the laws of the United States or other applicable jurisdiction, and will only use the Program for legitimate purposes. If the person entering this Agreement is doing so on behalf of a legal entity, such person represents that he or she has the legal authority to bind the legal entity to this Agreement. If you agree to be bound by this Agreement, you should click on the “I agree to abide by the Manifest Participant Agreement” checkbox to move forward with the registration process. If you do not agree to be bound by this Agreement you should not click the described selection. You will not be able to join the Manifest Experience or Special Event as a Participant without agreeing to this Manifest Participant Agreement.
1. Participant Program. Manifest is a member-based travel club service providing packaged travel experiences, which generally include air, ground and/or water transportation, lodging, curated experiences, events and other concierge-type services for its Members and Participants (“Experiences”). Manifest also arranges events based in its charter cities for its Members and Participants, which may include other services such as catering, parking and activity programming (“Special Events”). Air transportation procured by Manifest shall be provided by third party aircraft carriers (each, an “Carrier”). Manifest will arrange Services other than air transportation, which may be provided by third parties (each, a “Third Party Provider,” and together with Manifest and Carrier(s), the “Program Parties”), such as transportation services (i.e., Uber, taxi, helicopter, ferry services), hospitality providers, accommodations, event venues, activity providers, airport facilities, parking, shipping, caterers and personal services. Experiences and Special Events arranged by Manifest and any other product or Services provided by Manifest to its Participants are subject to: (a) this Agreement; (b) the contract of carriage and other applicable terms and conditions for a Carrier and other Third Party Providers (the “Contract of Carriage”), which may be provided to Participants via a link on Manifest’s website; (c) the pricing and programming set forth in the applicable Experience or Special Event package description (“Package Terms”); (d) all additional policies, rules, terms and conditions that are presented on Manifest’s website or mobile device application and any ticket or ticket-less authorization or confirmation (collectively, the “Program Rules”); and (e) applicable governmental laws, rules and regulations, including but not limited to United States Department of Transportation (“DOT”) regulations.
a. Term and Termination. You and Manifest agree to the terms and conditions set forth herein, commencing on the date you are notified that you have been confirmed on an Experience or Special Event as a Participant (the “Commencement Date”) and shall continue until the completion of the Experience or Special Event.(the “Participant Term”) or until earlier cancelled or terminated as provided in this Agreement.
b. Participant Program. Manifest may provide access to its software, including applications, websites, social media, marketplaces, and integrated communication tools which form part of the Program, and are designed to enhance the user experience, communications, service optimization, functionality and logistics of the Program (“Software”). Your Participant Agreement is included in the Software provided by Manifest. Participants can access and utilize the Program and Software only as stipulated and limited under the terms and conditions of this Agreement and any other Program Rules. Participant represents that all information provided in the Participant application or Participant Agreement is true, accurate, current, and complete. Participant agrees to provide all security information requested by the Program Parties.
c. No Sales or Transfers. Manifest Participant Experiences are non-transferable. Participant privileges cannot be loaned, shared, pledged, transferred, assigned, leased, sold to or used by any third party, except as specified in this Agreement.
d. Background Checks. Participant agrees and consents to periodic background checks at any time during the Participant Term and prior to any such individual’s participation in a Manifest Experience or Special Event, especially when private aircraft may be used for transportation to any Experience or Special Event. A Participant’s acceptance of this Agreement and delivery of the Participant’s personal information constitutes consent to Manifest to perform a background check. Participant acknowledges and agrees that in so doing, Manifest may require that Participants provide additional information, including, but not limited to, date of birth, driver’s license number, social security number or global entry card, and may share all or a portion of such information with third party vendors for the purpose of conducting the background check. Background checks may be performed by a third party and in accordance with such third party’s policies and procedures. Manifest will maintain the confidentiality of information provided by Participants as required by applicable law. Background checks may take up to five (5) business days to process. Manifest reserves the right, at its sole discretion, to refuse Program participation to any person that does not comply with the request for a background check or based on the results of a background check.
2. Reservations. Participants will have access to Program and Software for the purpose of booking an Experience or Special Event. Prices are not guaranteed until the reservation is made and confirmed. All Experiences and Special Events are subject to availability and are offered on a first-come, first-served basis.
3. Reservation Modification and Cancellation Policy. Participants are permitted to change or cancel Experiences or Special Events reservations subject to the following modification and cancellation policy. For cancellations of Experiences or Special Events reservations within 24 hours of booking, a full refund less an administrative fee of one hundred fifty dollars ($150.00) per confirmed person will be made to the original form of payment. For all other Experiences or Special Events, no refund will be given unless Manifest is able to resell the Experience or Special Event to another Member or Participant. When Manifest is able to resell an Experience or a Special Event reservation due to a cancellation, Manifest will charge an administrative fee of one hundred fifty dollars ($150.00) per confirmed person, and the balance of the purchase price will be refunded to the original form of payment used for purchase.
a. Cancellations or Delay by Carrier or Third Party Providers. Manifest will arrange travel with Carriers or Third Party Providers who will attempt to transport Participants and their baggage promptly and as scheduled. Schedules, however, are subject to change without notice and the schedules, Experiences and Special Events cannot be guaranteed by Manifest. Manifest will use reasonable efforts to promptly notify all affected Participants, using the contact information provided by each Participant Agreement, of planned or unplanned schedule changes, change or cancellation of venues, and cancellations including, but not limited to, those due to weather. At times, without prior notice to Participants’, a Carrier or Third Party Provider may need to substitute aircraft, lodging, transportation and/or activities, or change Carrier or Third Party Provider entirely, and may add or omit intermediate or connecting stops and other services. Manifest cannot guarantee that Participants will make connections to other Carrier flights, or those of other air carriers. Manifest cannot guarantee that there will not be cancellations, changes or substitutions by Third Party Providers.
b. Force Majeure. In the absence of negligence on the part of Manifest, neither Manifest, nor its directors, officers, agents or employees assume responsibility for, and you agree to release, relieve and hold harmless Manifest and its directors, officers, agents and employees from any claim, action, cause of action, injury, loss or damage arising from: the actions or omissions of any Third Party Providers supplying transportation, lodging, means or other goods or services; missed or delayed departures, arrivals or connections; missed or delayed ground transportation or car rental expenses; lost or stolen property, including but not limited to personal items or baggage; damage to or delay of baggage or other property; costs or expenses arising out of injury, accident or death; quarantine; disturbances; governmental restrictions or regulations; inconvenience; disappointment or loss of enjoyment; loss of pay or business opportunity; equipment breakdown; airport closure; air traffic control restrictions; governmental action; strike or lockouts; war; terrorism; weather; acts of God or the public enemy; or any other factors or causes beyond Manifest's reasonable control (“Force Majeure”). Manifest recommends Participant purchase travel insurance for the total value of an Experience or Special Event.
c. Reservation Modification or Cancellation by Manifest. In the event Manifest cancels any reservation, Experience, Special Event or any other Services for any reason other than a Force Majeure event, you will receive a full refund of any payments made directly to Manifest related to such reservation, Experience, Special Event or Services. Such refunds will be made via the method used to make the original payment. All rights and privileges of Participant are subordinate to the claims or liens of any debt, deed of trust, deed to secure debts, mortgage, lease or similar instrument, or other encumbrances encumbering Manifest now or hereafter existing.
4. Air Transportation Terms. Manifest, as the Participant’s agent, will develop and arrange Experiences. Participant authorizes Manifest to arrange air transportation services for Participant. Air transportation procured by Manifest shall be provided by Carriers holding an Air Carrier Certificate from the Federal Aviation Administration authorizing them to provide air transportation services pursuant to Part 135 of the Federal Aviation Regulations (14 C.F.R. Part 135 (“FAR Part 135”)). Participant understands that Manifest is not a FAR Part 135 air carrier or operator of aircraft; Manifest owns no aircraft and does not employ pilots, flight crews, or maintenance or ground support personnel. Manifest arranges air travel and other services solely as the manager of the Program on behalf of its Participants. All flights arranged under this Agreement are operated by a Carrier, who shall have exclusive direction, control and authority over initiating, conducting and terminating flights. Unless it is expressly stated that a flight is operated pursuant to a Public Charter Program, all travel arrangements are made pursuant to FAR Part 135 and under the DOT Regulation Part 295 (49 C.F.R. Part 295) and under the terms, restrictions and limitations reflected in this Agreement and in Carrier’s Contract of Carriage then in effect. Air travel by Participants shall at all times be subject to applicable laws and regulations, including regulations and guidelines established by the DOT, Federal Aviation Administration and Transportation Security Administration (“TSA”). A Carrier performing the flight will be subject to, among other things, flight time and duty time restrictions; air traffic control and airport restrictions and limitations that may preclude or limit operations to certain airports; and other applicable governmental regulations, requirements, restrictions and limitations. Participant understands and agrees that a Carrier shall have absolute discretion in all matters relating to the operation of the aircraft, including, without limitation: the preparation of the aircraft for flight and the flight itself, the timing of the flight, the load carried and its distribution, the decision whether or not a flight is to be performed, the route to be flown, deviation from the specified route and where alternative and immediate landings shall be. Participant expressly agrees that a Carrier shall have final and complete authority to cancel any flight for any reason or condition that in its sole and absolute judgment could affect the safety of flight and may take any other action that, in its opinion, is necessitated by considerations of safety. No such action of a Carrier shall create or support any liability for loss, injury, damage or delay to Participant. Manifest shall not be responsible or liable for any decisions by a Carrier to cancel, modify or delay any flight for any reason.
a. Identification and Travel Documents. Participants are required to comply with all United States TSA regulations and other applicable government regulations and will be required to present valid identification prior to departure for all flights. A Carrier has the right to refuse boarding to any person without the required documentation or as a result of non-compliance with TSA or other government regulations without recourse or further obligation on behalf of Carrier or Manifest. Proper identification may also be required by other Third Party Providers in order to provide Services to you, as may be specified in the Package Terms.
b. Late Check-in and No Shows. Participants must check in with the appropriate Manifest personnel located at the departure facility prior to the check-in time indicated in the Package Terms or by a Program Party representative (but in no case later than thirty (30) minutes prior to the scheduled departure time) or the Participant will be considered a “No Show.” No Shows will be unable to board the scheduled transportation and Manifest may, and without liability therefor, refuse to honor any confirmed Experience or Special Event. No refunds shall be issued for late check-in or No Shows and all payments for the Experience or Special Event will be retained by Manifest as liquidated damages and not as a penalty. Manifest may change, at its sole discretion, the time Participants must arrive prior to a Special Event or Experience. In such cases, Manifest will provide notification to all parties with as much advance notice as reasonably possible.
c. Baggage and Personal Property. Baggage allowance will be subject to the Contract of Carriage for Manifest and the Contract of Carriage for the Carrier, Third Party Providers or Special Event venues. Carriers may have limitations regarding carry-on or checked luggage that are more restrictive that commercial airlines due to the nature of the cargo hold of the aircraft used for flights. Participants must accompany the transportation of personal property on a flight. If baggage is overweight or oversized for the flight or transportation Carrier, Manifest may refer the Participants to the services of a third party baggage shipping service for shipping of baggage to Participant’s destination. Participant is solely responsible for any third party baggage shipping fees and agrees that Manifest shall not be liable for the loss of or damage to such baggage while in the care, custody or control of Carrier or any Third Party Providers or Special Event venues or during transportation by any third party shipping service.
d. Additional Transportation and Parking. Participants are responsible for charges associated with any transportation or parking not included in and additional to Manifest’s Services. Manifest assumes no responsibility for, and all Participants waive any claims against Manifest relating to or in connection with any additional transportation or parking that may be offered in connection with Manifest Experiences or Special Events.
5. Third Party Provider Rules, Terms and Conditions. Your participation in the Experiences, Special Events or Services is also subject to the terms and conditions established by the Third Party Provider, as same may change from time to time. A copy of the Third Party Provider’s terms and conditions for the Experience, Special Event or Services will be provided to you prior to your departure or upon request and are binding on you. The Third Party Provider terms and conditions contain significant agreements and you are hereby advised to read them carefully. If there is any direct conflict between terms contained in this Agreement and any of the Third Party Provider’s terms and conditions (such as the cancellation policy), the terms of this Agreement will control.
6. Modifications by Manifest. Manifest has the right to add, modify, suspend or eliminate the Program and any Participant Services, including Experiences, Special Events, Carriers, flights, destinations, routes, types of aircraft used, and changes to or imposition of new fees or other charges for the Program or the Services, that are made available from the Program Parties and other related Services at any time with or without notice, in its sole discretion. Manifest is not liable for any refunds or costs incurred by Participant resulting from any such modification or cancellation.
a. Third Party Fees. Manifest may occasionally promote or offer for sale to Participants goods or services provided by Third Party Providers, which are not included in or are additional to an Experience or Special Event. All fees for Third Party Provider products or services purchased by a Participant (“Third Party Fees“) are the responsibility of the Participant. Unless charged directly to the Participant, Third Party Fees will be billed by Manifest to such Participant or as directed by such Third Party Provider. Third Party Fees are due within fifteen (15) days of receipt of an invoice from Manifest.
b. Billing and Payment. You agree and authorize Manifest to charge the credit/debit card or other payment system provided by the Participant to Manifest for all amounts due, including Experiences, Special Events, any Third Party Fees and any applicable taxes and fees (altogether, the “Fees”). Fees are payable in US dollar denominations. Experience and Special Event Fees are due to Manifest on a schedule as set forth in the Package Terms or, if no schedule is specified, at the time of booking. Experience and Special Event reservations are not confirmed until you receive a confirmation email from Manifest. Payment of the applicable Experience or Special Event Fee, as applicable, is a condition precedent to Manifest’s confirmation of your reservation. Third Party Fees are due within fifteen (15) days of receiving an invoice. Applicable taxes and fees may be invoiced separately, if deemed necessary in Manifest’s sole discretion. Any Fees that are not paid by the due date will accrue interest at 1.5% per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid in full. In its discretion, Manifest may accept multiple forms of payment for Fees, including major credit cards, automated clearing house (“ACH”) or wire transfer. Manifest reserves the right in its sole discretion and upon immediate notice to revoke or revise methods of acceptable payment of Fees. If Fees are paid via credit/debit card, Participant agrees to provide Manifest a valid credit/debit card and authorizes Manifest to automatically charge Experience fees, and Special Event fees to the credit/debit card on file and on the payment schedule applicable to the Participant Program. Participants shall provide new or updated credit card information promptly following expiration of the credit/debit card on file. If Fees are paid via ACH or wire transfer transactions, Participant agrees to provide necessary authorizations to allow for payment of Fees per the applicable schedule. Payments processed through any of the above methods will always be subject to the terms and conditions of the respective payment processing agencies, and any violation by Participant of such terms and conditions can result in cancellation of Experience, Special Event or Third Party Services. Manifest has no responsibility for payments transmitted in error, or payments that fail to transmit due to an omission, by a Participant or any third party, and Participant shall remain responsible for any unpaid Fees that result from Participant’s non-payment due to an error or omission by Participant or any third party. Any fees, assessments or other charges payable by Participant in connection with Participant’s use of services by payment processing agencies and based on form of payment used by the Participant shall be the sole responsibility of the Participant, and Manifest shall have no liability for any such fees, assessments or charges.
c. Taxes. You are solely responsible for payment of all taxes and fees as well as any additional charges imposed by any municipality, state, federal or other government authority in connection with your receipt of Experiences Special Events and Services, including, for example, payment of all departure taxes, sales taxes or similar charges. In connection with processing all reservations for an Experience or Special Event, a portion of the charge to your debit or credit card on file with Manifest will include a charge for taxes and fees. This charge includes an estimate of the amount we pay to applicable federal, state, local or foreign taxing authorities in connection with your Experience or Special Event, including but not limited to federal excise taxes on transportation, sales and use taxes, transient and/or hotel occupancy, room, excise, value added and/or other similar taxes. The amount payable to the applicable taxing authority in connection with your reservation may vary based on the jurisdiction in which the lodging and services are provided.
8. Electronic Communications and Signature.
a. Consent. Your Participant Program is administered electronically, and Manifest may need to provide you with written communications by electronic means (“Electronic Communications”). By entering into this Agreement, you consent and agree to receive Electronic Communications from the Program Parties rather than in paper form, and to the use of electronic signatures in our business relationship with you. By agreeing to this Agreement, you agree to be bound whenever you click on an “Agree”, “Accept” or similar button on the Manifest website, at which time a valid, binding and enforceable electronic contract will be formed. If you choose not to consent to receiving Electronic Communications or you withdraw your consent, you may be restricted from participating in the Program.
b. Electronic Delivery of Communications. All Electronic Communications may be delivered to the email address you provide in your Participant Program or we may post the Electronic Communications on Manifest’s website. You agree that all agreements (including this Agreement, the Contract of Carriage and Package Terms), any other Program Rules, confirmations, terms and conditions, policies, notices, disclosures, receipts, modifications, amendments and other communications that Manifest provides to you electronically satisfy any legal requirement that such Electronic Communications would satisfy if it were be in a hardcopy writing. We may also use electronic signatures and obtain them from you. The foregoing does not affect your non-waivable rights.
c. System Requirements. To receive and access Electronic Communications, you will need the following: (i) a computer or mobile device with internet or mobile connectivity; (ii) access to the email address used to create your Participant Program; (iii) recent web browser that includes 256-bit encryption (recommended most recent versions of Mozilla Firefox, Apple Safari or Google Chrome); and sufficient storage space to save the Electronic Communications and/or a printer to print them.
d. Paper Delivery. If applicable law requires us to provide a paper copy of Electronic Communications, you may request a paper copy by submitting a non-electronic request to the address in the Contact Information section below, and we will provide such paper copies at no charge within fourteen (14) days of receipt. For the avoidance of doubt, requesting a paper copy of any Electronic Communication, in and of itself, will not be treated as withdrawal of consent to receive Electronic Communications.
e. Withdrawal of Consent. You may withdraw your consent to receive Electronic Communications at any time, by writing to the address in the Contact Information section below. However, withdrawal of your consent to receive Electronic Communications may result in termination of your Participant Program and further access to Services. Any withdrawal of your consent will be effective after a reasonable period of time for processing your request, and Manifest will confirm your withdrawal of consent and its effective date in writing (either electronically or in paper form). Withdrawal will not affect the legal validity and enforceability of prior Electronic Communications.
9. Participant Conduct. The Program Parties shall have the right to refuse boarding, transportation, lodging or entrance to any person: (a) whose conduct is disorderly, abusive or violent, or appears to be intoxicated or under the influence of any illegal or controlled drugs; (b) who refuses to be subject to any reasonable security checks, searches and scans of his or her person or baggage by us, our handling agents, the Carrier, Third Party Providers, or government or airport authorities; (c) whose condition, including apparent illness or incapacity, in the sole judgment of Carrier or Third Party Providers, would involve a hazard or risk to him/herself, the crew, other participants, Carrier’s aircraft and property, or the property of others; (d) who fails to provide proper identification in compliance with applicable laws or governmental regulations; or (e) who is conducting him/herself in a manner inconsistent with, or otherwise in breach of, the terms of this Agreement or any other Program Rules. Non-Member agrees to review and comply with all Program Rules, such as procedures for flight, lodging, experiences, catering, ground and water transportation, baggage, and flight cancellation policies, including the applicable Carrier’s Contract of Carriage for additional terms and conditions imposed by Carrier for flights arranged under this Agreement by Manifest as well as the rules and policies of Third Party Providers. If the conduct of a Participant endangers the aircraft, vehicle, any person, animal or property while on an Experience or Special Event, or a Participant obstructs or hinders Carrier or any Program Party or their respective crews and employees in the performance of their duties, or fails to comply with any instruction of the Carrier or any Program Party or their respective crews, including but not limited to, those with respect to weapons or objects that can inflict harm to persons, animals or property, smoking in any form, drugs, alcohol, or use of any threatening, abusive or insulting words towards Carrier and its crew or any behavior which causes discomfort, inconvenience, damage or injury to Carrier or its crew or persons on the Experience or Special Event, then the Program Parties may take such measures as deemed necessary to prevent continuation of such conduct including restraint. Participants may be disembarked and refused onward carriage or attendance at any point and may be prosecuted for offenses committed. In addition, while waiting for travel or checking-in for flights or events at the airport or other facilities, Participants are expected to conduct themselves in a manner that is respectful of Manifest, Carrier or on-ground staff, Third Party Providers, as well as other Members, Co-Members, Participants, and Guests. If the conduct of a Participant is in any way abusive, inappropriate, in violation of facility policies or the law, or threatens the safety of any person or property, Manifest may take such measures as deemed necessary to prevent continuation of such conduct, including refusal of further service or contacting law enforcement. If any Participant is not acting in conformance with the proper rules of conduct or any community guidelines or other policies published by Manifest, privileges may be revoked permanently at Manifest’s sole discretion, without refund. If Participant is refused Services under the provisions of the Contract of Carriage, or policies of Third Party Providers, they may be refunded at Manifest’s sole discretion. Such a refund shall be the sole recourse of any refused service. In cases where fines, fees, or penalties are imposed, the Participant is responsible for such charges incurred.
a. Pet Policy. Pets are not permitted on Experiences or at Special Events. In cases of an animal meeting the definition of a “service animal” under the Americans with Disabilities Act (“ADA”), and for which you notified Manifest at time of booking the Experience or Special Event, the animal is subject to approval by Manifest, Carrier and any Third Party Providers. Nothing in this section may be construed to imply that Carrier or Third Party Providers are subject to the requirements of the ADA in all cases or are otherwise required to permit any animals even if such animals meet the definition of a “service animal” under the ADA. Unauthorized transportation of pets and animals will result in cleaning and related fees that will be charged to Participant’s credit/debit card on file with Manifest. Participant shall be solely responsible for all repairs, cleaning and related fees that may be charged as a result of bringing a service animal. You acknowledge and agree that the imposition of such fees is allowable and authorize Manifest to charge such fees to Participant’s credit/debit card or applicable payment method on file.
b. Smoking Policy. Participant acknowledges and agrees that smoking and the use of all smokeless tobacco products (including e-cigarette devices) is absolutely prohibited on all aircraft. Furthermore, federal law also prohibits smoking, electronic smoking devices in an airplane lavatory and tampering with, disabling or destroying any smoke detector in any airplane lavatory. Participant shall be solely responsible for all cleaning and related fees that Carrier or Third Party Providers may charge as a result of the violation of this policy, which includes a minimum $250.00 fee. Participant expressly agrees to indemnify Manifest against any and all claims, penalties, fees or other liabilities arising out of Participant’s failure to comply with this provision.
c. Property Damage. No person may remove or damage any property belonging to the Program Parties or other persons while on a Manifest Experience or attending a Special Event. Participant agrees that the Program Parties are authorized to charge the full replacement cost, repair cost and cleaning cost of any and all property that is discovered to be missing or damaged during your Experience or Special Event to your credit/debit card or other payment system on file. Failure to pay is grounds for suspension or termination of your Manifest Participant Program, which does not affect our right to receive the entire invoiced amount.
d. Drugs. Manifest has zero tolerance for transportation or use of narcotics and other controlled substances, including but not limited to drugs and drug paraphernalia, regardless of whether certain substances may be considered legal in any states.
10. Rules and Enforcement of Participant Program. Manifest reserves the right to suspend or terminate (at Manifest’s option) a Participant Program if: (a) payments of Participant Fees are not received on its due date; (b) if Participant breaches any terms or conditions of this Agreement or other agreements incorporated herein by reference; or (c) Manifest’s belief that a Participant’s continued use of such Program would violate any provisions of this Agreement or applicable law. Upon suspension for non-payment, Participant Program shall be suspended until such time as Participant provides a valid payment method and all Fees owed to Manifest have been received. If Participant is not permitted to participate in a purchased Experience or Special Event due to a suspension, Manifest, at its sole discretion, will determine whether a refund will be offered. Participant understands and agrees that if the Program is cancelled due to Participant’s breach of any terms or conditions of this Agreement or other agreements incorporated herein by reference, Participant will lose all Program privileges, payments previously made for Experiences and/or Special Events, and forfeit any additional benefits that might be available to Participant. In the event of a cancellation due to Participant’s breach of any of the payment or other obligations of the Agreement, Participant shall remain liable to pay any unpaid Fees, interest, late fees, costs and expenses. Except as expressly provided herein, Participant agrees that he or she will not be entitled to a refund of the Fees or any portion of them, and will hold Manifest harmless for the loss of Services, credits or any additional benefits.
11. Experience Release and Waiver. You represent that you are 21 years of age or older. You affirm that you HAVE READ THIS EXPERIENCE RELEASE AND WAIVER AND FULLY UNDERSTAND THE ASSUMPTION OF RISK, RELEASE, WAIVER, AND CONSENT CONTAINED IN IT AS WELL AS MANIFEST’S LIMITATIONS OF LIABILITY AND DISCLAIMERS OF WARRANTY. YOU FURTHER UNDERSTAND THAT YOU HAVE GIVEN UP RIGHTS BY AGREEING TO THESE TERMS AND HAVE DONE SO FREELY AND VOLUNTARILY AND WITHOUT INDUCEMENT.
a. Assumption of Risk. Carriers and Third Party Providers are neither agents nor employees of Manifest. Participants agree that Manifest and its respective affiliated companies and subsidiaries, and all of their respective members, managers, officers, directors, employees, insurance companies, successors in interest, commercial and corporate sponsors, representatives, and assignees (the “Manifest Parties”) are not liable for the acts, errors, omissions, representations, warranties, breaches, or negligence of any Carrier or Third Party Provider or for any personal injuries, death, property damage or the damages or expense resulting therefrom. Specifically, Participant understands and agrees that the Manifest Parties are not liable for any injury, damage, loss, expense, special or consequential damages, or any other irregularity caused by the defect of any aircraft, vehicle or conveyance, or the negligence of any company or person engaged in conveying the passenger, or carrying out the arrangements for Participant’s trip or providing any partner benefits or by accident, delay, flight schedule, change, cancellation, sickness, weather, strikes, war, quarantine or any similar cause. Manifest assumes no responsibility and all Participants waive any claims against the Manifest Parties, relating to or in connection with any transportation or parking that may be offered in connection with Manifest’s Services. This includes any damage, loss or theft to a Participant’s vehicle(s) and its/their contents while parked in any parking area or otherwise in the care of any Third Party Providers. Manifest does not own or operate any aircraft on which the flights are performed and does not carry aviation insurance. Furthermore, policies of insurance are provided and administered by the respective Carriers and Third Party Providers. It is the sole responsibility of a Carrier and Third Party Providers to maintain liability insurance coverage. Manifest assumes no liability for and makes no guarantees or warranties regarding Carrier or Third Party Providers or effectiveness of their services and Participant acknowledges that such benefits or services may change or end during the Program Term.
b. Limitation of Liability. Participant understands and agrees that Manifest’s and the Manifest Parties’ liability shall in any case be limited to the amount paid by Participant to Manifest. In addition, no claim will be recognized by Manifest unless written notice of such claim is presented to Manifest within twenty-one (21) days after the occurrence of the event giving rise to the claim. No legal action on any claim described above may be maintained against the Manifest Parties unless commenced within six (6) months of Manifest’s written denial of a claim, in whole or in part. IN ALL CASES AND UNDER ALL CIRCUMSTANCES, THE MANIFEST PARTIES SHALL NOT IN ANY EVENT BE LIABLE TO PARTICIPANT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND OR NATURE INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, USE, VALUE, REVENUE, BUSINESS OPPORTUNITIES, AND THE LIKE, UNDER ANY CIRCUMSTANCES OR FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, ANY DELAY OR FAILURE TO FURNISH ANY AIRCRAFT CAUSED OR OCCASIONED BY THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATIONS OF CARRIER (REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT OR TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY), EVEN IF ANY SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITIES OF SUCH DAMAGES.
c. Specific Limitations for Baggage Claims. Manifest personnel may assist with the handling of baggage on behalf of Participants in connection with Participant check-in. Manifest will be liable for personal property only for the period in which it is in the custody of Manifest. Manifest’s liability, if any, for loss of or damage to baggage and its contents, with the exception of wheelchairs, mobility aids, and assistive devices used by an individual with a disability, is limited to the proven actual value of damage or loss, but in no event shall be greater than $200.00 per Participant. In the case of loss of, damage to, or delay in delivery of baggage, no claim will be reviewed by Manifest unless preliminary written notice of such claim is presented to a Manifest representative in person within one (1) day after arrival of the flight on which the loss, damage, or delay is alleged to have occurred. The preliminary notice may thereafter be amended in writing; however, such amended claim must be presented to Manifest no later than ten (10) days after the occurrence of the event giving rise to the claim. Failure to provide timely written notice will not bar a claim if the claimant establishes to the satisfaction of Manifest that he or she was unable, through no fault or omission of the claimant, to provide notice within the specified time. Manifest will compensate the Participant for reasonable, documented damages incurred as a result of the loss of or damage to such items up to the limit of liability as set forth above, provided that the damage was caused by Manifest or occurred while the baggage was in Manifest’s sole custody, and the Participant exercised reasonable effort to minimize the amount of damage, as determined in Manifest’s discretion. Actual value for reimbursement of lost or damaged property shall be calculated as the lesser of the documented original purchase price of the items, less depreciation for prior usage, or the cost to make applicable repairs. In no event will Manifest be liable for damage to bags arising from ordinary wear and tear or broken or damaged handles, zippers, snaps, flaps, rivets or wheels. While Manifest will make reasonable efforts to return carry-on items that have been left onboard an aircraft, the Manifest Parties assume no liability or responsibility for the loss of or damage to left carry-on items. If a wheelchair, mobility aid, or assistive device is lost, damaged, or destroyed while in Manifest’s possession, the Manifest Parties’ liability shall be the documented original purchase price of the wheelchair, mobility aid, or assistive device, without depreciation. Under no circumstances shall the Manifest Parties be liable to any Participant for any type of special, incidental or consequential damages related to the damage, loss or delay of baggage or personal property.
d. Disclaimer of Warranties. EACH PARTICIPANT ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT AND IN THE TERMS AND CONDITIONS, IN EACH CASE AS AMENDED FROM TIME TO TIME: (I) NEITHER MANIFEST NOR ANY OTHER PERSON ON MANIFEST’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED; (II) ALLPROGRAMSEXPERIENCES AND SERVICES ARE PROVIDED “AS IS”; AND (III) EACH PARTICIPANT ACKNOWLEDGES AND AGREES THAT, IN DECIDING TO PURCHASE OR USE MANIFEST SERVICES, HE, SHE, OR IT HAS NOT RELIED UPON ANY REPRESENTATION, WARRANTY OR DISCLOSURE MADE BY MANIFEST OR ANY OTHER PERSON ON MANIFEST’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT OR IN THE TERMS AND CONDITIONS, IN EACH CASE AS AMENDED FROM TIME TO TIME. WITHOUT LIMITING THE FOREGOING AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, MANIFEST EXPRESSLY DISCLAIMS ANY WARRANTIES OF SAFETY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, AND AS TO THE ADEQUACY OF THE DIRECTIONS AND WARNINGS PROVIDED TO YOU.
e. Indemnification. You agree that if, despite this Experience Release and Waiver, you or anyone on your behalf make a claim against the Manifest Parties relating to an Experience and/or Special Event, you will indemnify and hold the Manifest Parties harmless from any liability, demand, loss, damage, or costs which the Manifest Parties may incur as the result of such claim.
12. Choice of Law; Arbitration. The Manifest Software, your Participant Program, this Agreement, the Program Rules and any other policies, terms, conditions or agreements set forth by Manifest will be governed in all respects by the laws of the State of Colorado, exclusive of its conflicts of laws rules. Any dispute, controversy or claim arising under, out of, or in connection with the Manifest website, your Participant Program, this Participant Agreement, an Experience, a Special Event, the Services and any other policies, terms, conditions or agreements, where such dispute has not been settled within thirty (30) days after written notice from either party to the other of the existence of the dispute, shall be resolved in its entirety by individual (not class wide or collective) binding arbitration in accordance with the following procedures, except that you or Manifest may take claims to small claims court if they qualify for hearing before such court. You and Manifest agree to waive the right to trial by jury. This agreement to arbitrate extends to claims that you assert against the Manifest Parties. This agreement to arbitrate shall survive termination of this Agreement. Notwithstanding anything to the contrary, if any part of this agreement to arbitrate is deemed invalid or inapplicable, the remainder of the agreement to arbitrate shall still be considered valid and enforceable. If any part of this agreement to arbitrate is deemed invalid or inapplicable, you and Manifest both waive, to the fullest extent allowed by law, any claims to recover punitive or exemplary damages and any right to pursue any claims on a class, mass, consolidated, or combined basis. Arbitration shall be conducted in accordance with and subject to the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then applicable. One arbitrator will be selected by the parties’ mutual agreement or, failing that, by the AAA, and the arbitrator will allow such discovery as is appropriate, consistent with the purposes of arbitration in accomplishing fair, speedy and cost effective resolution of disputes. To begin an arbitration proceeding, you must serve Manifest at 3001 Brighton Blvd, Suite 353 Denver, CO 80216, United States. Any arbitration will take place in Denver, Colorado and will be determined by a single arbitrator; provided, however, that upon request by either party, the arbitration may be conducted via telephone to the extent permitted. Payment of all filing, administration and arbitrator fees will be governed by the AAA rules. Reasonable attorneys’ fees and expenses will be awarded only to the extent such allocation or award is available under applicable law. The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief). Judgment on the award may be entered in any court of competent jurisdiction. The proceeding will be closed except to the parties, their attorneys, representatives, witnesses, and experts, all of whom must agree or have a duty to maintain the confidentiality of the dispute and its result, except as needed to implement the ruling.
b. Appearance Release. Participant hereby grants Manifest, its affiliates, licensees, successors and assigns, the right to use, publish, copy and reproduce, for all purposes and in perpetuity, Participant’s name, picture in film or electronic (video) form, voice sound and video recordings, and printed and electronic copy of the information described above that is created while Participant are participating in any aspect of the Program in any and all media including, without limitation, cable and broadcast television and Internet, and for exhibition, distribution, promotion, advertising, sale, press conferences, meetings, hearings, educational purposes and in brochures and other print media. This permission extends to all languages, media, formats and markets now known or hereafter devised whether in the United States or abroad. Participant hereby waives the right to receive any payment for granting this release and waives the right to receive any payment for Manifest’s, its affiliates, licensees, successors and assigns use of any of the material described above for any purpose authorized by this release. Participant also waives any right to inspect or approve finished photographs, audio, video, multimedia, or advertising recordings and copy or printed matter or computer generated scanned image and other electronic media that may be used in conjunction therewith and to approve the eventual use that it might be applied.
c. Assignment. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Manifest’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Manifest may assign this Agreement, without your prior consent. This Agreement will be binding upon Participant’s heirs, executors, assigns, administrators, and other legal representatives, and will be for the benefit of Manifest, its successors, and its assigns. There are no intended third-party beneficiaries to this Agreement, except as expressly stated. Manifest and its authorized agents, representatives, vendors, successors or assigns may perform Manifest’s obligations and exercise its rights hereunder.
d. Amendment; Entire Agreement. Manifest may amend or modify this Agreement from time to time. Amendments will be effective upon Manifest’s publishing of such amended or modified terms and conditions on its website and mobile device applications, or via email communication to Participants. A Participant’s continued access or use of the Software, Program or Services after such posting constitutes Participant’s consent to be bound by the Agreement, as amended or modified. No agent or representative of Manifest has authority to change or waive any provision of the Agreement unless authorized in writing by a corporate officer of Manifest. The provisions of this Agreement shall survive termination of your Participant Agreement and any reservation an Experience, Special Event or other Service. Manifest’s website, this Agreement and any other Program Rules set forth by Manifest in connection with your Participant Agreement or use of the Services constitute the entire the entire agreement between Manifest and its Non-Members pertaining to the subject matter hereof.
e. Severability. If, for any reason, any portion of this Agreement is determined by a competent authority to be void or unenforceable, then (i) that portion will have no effect, (ii) the balance of this Agreement will remain in full force and effect, and (iii) this Agreement will be performed as though the stricken portion were replaced with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision.
f. Titles. Article titles and subheadings contained in this Agreement are inserted only as a matter of convenience and for reference. Such titles in no way define, limit, or describe the scope or extent of any provision of this Agreement.
g. Conflicts. In the event of a conflict between this Agreement, a Contract of Carriage, Package Terms, and the Program Rules specified on Manifest’s website or mobile device application, precedence will be given in the order in which they are listed in this section and if there is more than one version of any that are applicable, the last in time.
h. Notice; Contact Information. Manifest may give notice by means of a general notice through Manifest’s website, email Participant’s email address on record or by written communication sent to Participant’s address on record. Such notice shall be deemed to have been given upon the expiration of two (2) business days after mailing (if sent by first class mail) or twenty-four (24) hours after posting or sending it via email or other means of electronic transmission. Participant may give notice to Manifest (such notice shall be deemed given when received by Manifest) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class mail postage prepaid with delivery confirmation to Manifest at the following address: Manifest, 3001 Brighton Blvd, Suite 353, Denver, CO 80216, addressed to the attention of: Chief Executive Officer, with a copy to the Legal Department.
Revised: April, 2020
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