Bivwak Terms of Use

Terms of Use

PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. BY ACCESSING OR USING THIS WEBSITE OR ANY OTHER WEBSITE OF BIVWAK LLC OR THEIR SUBSIDIARIES, AFFILIATES, OR AGENTS (COLLECTIVELY, “BIVWAK” OR “WE”) THAT LINKS TO THIS TERMS OF USE (COLLECTIVELY, THE “WEBSITE”) IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”) BY BIVWAK OR USERS OF THE SITE (“USERS”), CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE (THE “APP”), YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH BIVWAK, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE CUSTOMER, AND TO BIND THAT ENTITY TO THE TERMS OF USE.  THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE.  IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.

PLEASE BE AWARE THAT SECTION 16.b (ARBITRATION AGREEMENT) OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.

PLEASE BE AWARE THAT SECTION 2.d (COMPANY COMMUNICATIONS) OF THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.

You should print a copy of these Terms of Use or save them to your computer for future reference.

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service.  If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Agreement.”

PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY BIVWAK IN ITS SOLE DISCRETION AT ANY TIME.  When changes are made, Bivwak will make a new copy of the Terms of Use available at the Website and any new Supplemental Terms will be made available from within, or through, the affected Service on the Websit.  We will also update the “Last Updated” date at the top of the Terms of Use. Any changes to the Agreement will be effective immediately for new Users and will be effective thirty (30) days after posting notice of such changes for existing Users.  Bivwak may require you to affirmatively consent to the updated Agreement in a specified manner before further use of the Website or the Services is permitted.  If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services.  Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

1)    OUR SERVICES.

a)     Services Overview.  Our Services include the online networks and services that (a) connect individuals seeking campsite information, events, and reservations (“Campers”) with resources about camping, campsites, events, and other land or property suitable for use in connection with camping (each, a “Property”); (b) allow individuals or entities that own or otherwise have the authority to make available a Property (each, a “Landowner”) to make their Property available to Campers through a posted advertisement for such Property on the Services (each, a “Listing”); and (b) allow Campers to make reservations for access to and use of Property in accordance with the terms provided by Bivwak and the Landowner (each, a “Booking”). These Terms of Use apply to both Campers and Landowners and their use of the Services.

b)    Terms Applicable to Campers.

i)      Booking. This Agreement shall govern any Booking. There may be additional terms and conditions that apply to any request for a Booking (each, a “Booking Request”) or a Booking that you make, including policies that are set by the applicable Landowner that owns or manages such Property (“Property Rules”). These Property Rules may be set forth on the Service or otherwise communicated to you via a Booking confirmation email. Your ability to make a Booking for any Property is subject to: (i) availability of the Property; and (ii) payment of all fees and charges incurred in reserving and/or using the Property. Unless otherwise agreed in writing, you must settle all fees and charges incurred in reserving and/or using the Property prior to your use of the Property. A Booking is not confirmed until you have received written confirmation of the same through the Service.

(1)   A Booking may include a reservation on State or Federal lands and are subject to all rules and regulations imposed on the use of that Property by the governing authority of the Property.  Whenever a Booking is inclusive of a paid reservation on State or Federal lands, the Booking will explicitly itemize the charges for that reservation, such that, any fees or costs paid to the State of Federal authority, or their agents, in relation to securing and using the Property will be a direct pass through to the Campers and WILL NOT include any markups or profit to Bivwak. The reservation of any State or Federal lands is a good faith reservation to provide the Camper access to the Property at the same costs and under the same rules, regulations, and covenants the Camper would incur and be obligated to, had the Camper reserved the State or Federal Property themselves.  In such capacity, Bivwak is only acting as an agent of the Camper to secure the State or Federal Property on behalf of the Camper at no additional cost to the Camper nor to the financial detriment of any State or Federal authority.

ii)     Property Terms and Conditions.  You agree to comply with all applicable Property Rules and applicable laws, rules, regulations, and local ordinances in connection with your use of the Service and any Booking. You understand that a violation of Property Rules may result in cancellation of your Booking(s), in your being denied access to any Booking, or in your forfeiting any monies paid for such reservation(s). You hereby authorize us to debit or charge your account (via the method of payment associated with your account) for any costs we incur as a result of such violation (including any property damage or physical injury you cause). Bivwak may at any time require that you agree to Supplemental Terms prior to booking certain types of Properties.

iii)   Damage to Property. You are responsible for leaving the Property in the condition it was in when you arrived. You acknowledge and agree that you are responsible for: (i) your own acts and omissions in connection with any Property; and (ii) the acts and omissions of any third parties to whom you provide access to the Property, including without limitation any guests or invitees.

iv)   Temporary Access. A Booking is a temporary grant of access to a Property for a limited term, and shall not be considered to convey a tenancy, leasehold, ownership interest, or any right of access in and to the Property beyond the term for which a Camper initially made such Booking. As a Camper, you acknowledge and agree that you have no, and will obtain no, rights in or to any Property and you represent and warrant that (i) you will not exceed the term of any Booking without the Landowner’s prior written consent; and (ii) you will not assert or attempt to assert any ownership interest in any Property arising from or related to a Booking.

v)     Insurance. Bivwak may provide primary liability insurance for certain Services. Campers agree not to look to any such insurance for coverage. Bivwak may provide certain liability insurance and protection for certain Services. You are fully responsible for paying any damages not covered by our insurance, as well as insurance deductibles, fees, expenses, liens and fines arising out of your use or occupation of the Property.

c)     Use of the Services and Bivwak Materials.  The Website, the Services, and the information and content available on the Website and in the Services, (collectively, the “Bivwak Materials”) are protected by copyright laws throughout the world.  Subject to the Agreement, Bivwak grants you a limited license to reproduce portions of the Bivwak Materials for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Bivwak in a separate license, your right to use any Bivwak Materials is subject to this Agreement.

d)    Application License. Subject to your compliance with the Agreement, Company grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal or internal business purposes.

e)    Updates.  You understand that the Bivwak Materials are evolving.  As a result, Bivwak may require you to accept updates to the Bivwak Materials that you have installed on your computer or mobile device.  You acknowledge and agree that Bivwak may update the Bivwak Materials with or without notifying you.  You may need to update third-party software from time to time in order to use the Bivwak Materials.

f)      Certain Restrictions.  The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Bivwak Materials or any portion of the Bivwak Materials, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Bivwak Materials (including images, text, page layout or form) of Bivwak; (c) you shall not use any metatags or other “hidden text” using Bivwak’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Bivwak Materials except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) access the Bivwak Materials in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Bivwak Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Bivwak Materials. Any future release, update or other addition to the Bivwak Materials shall be subject to this Agreement.  Bivwak, its suppliers and service providers reserve all rights not granted in this Agreement.  Any unauthorized use of the Bivwak Materials terminates the licenses granted by Bivwak pursuant to this Agreement.

2)    REGISTRATION.

a)     Registering Your Account.  In order to access certain features of the Bivwak Materials you may be required to become a Registered User.  For the purposes of this Agreement, a “Registered User” is a User who has registered an account on the Website (“Account”).

b)    Registration Data.  In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.  You represent that you are (1) at least eighteen (18) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Bivwak Materials under the laws of the United States, your place of residence or any other applicable jurisdiction.  You are responsible for all activities that occur under your Account.  You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Bivwak Materials by minors.   You may not share your Account or password with anyone, and you agree to notify Bivwak immediately of any unauthorized use of your password or any other breach of security.  If you provide any information that is untrue, inaccurate, not current or incomplete, or Bivwak has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Bivwak has the right to suspend or terminate your Account and refuse any and all current or future use of the Bivwak Materials (or any portion thereof).  You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.  You agree that you shall not have more than one Account at any given time.  Bivwak reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights.  You agree not to create an Account or use the Bivwak Materials if you have been previously removed by Bivwak, or if you have been previously banned from any of the Bivwak Materials.

c)     Necessary Equipment and Software.  You must provide all equipment and software necessary to connect to the Bivwak Materials, including but not limited to, a mobile device that is suitable to connect with and use the Bivwak Materials, in cases where the Services offer a mobile component.  You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Bivwak Materials.

d)    Company Communications. By entering into this Agreement or using the Bivwak Materials, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or pre-recorded messages may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Bivwak Materials, updates concerning new and existing features on the Bivwak Materials, communications concerning promotions run by us or our third-party partners, and news concerning the Company and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF, NOTIFYING BIVWAK, OR MODIFYING YOUR NOTIFICATION SETTINGS THROUGH THE SERVICES. IF YOU WISH TO OPT OUT OF PROMOTIONAL CALLS OR TEXTS, YOU MAY DO SO BY MODIFYING YOUR NOTIFICATION SETTINGS THROUGH THE SERVICES OR NOTIFYING BIVWAK. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE BIVWAK MATERIALS OR RELATED SERVICES. IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM US (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS OR CALLS), YOU CAN MODIFY YOUR NOTIFICATION SETTINGS THROUGH THE SERVICES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS OR CALLS MAY IMPACT YOUR USE OF THE BIVWAK MATERIALS OR RELATED SERVICES.

3)    RESPONSIBILITY FOR CONTENT.

a)     Types of Content.  You acknowledge that all Content, including the Bivwak Materials, is the sole responsibility of the party from whom such Content originated.  This means that you, and not Bivwak, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Bivwak Materials (“Your Content”), and other Users of the Service, and not Bivwak, are similarly responsible for all Content they Make Available through the Bivwak Materials (“User Content”).

b)    No Obligation to Pre-Screen Content.  You acknowledge that Bivwak has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although Bivwak reserves the right in its sole discretion to pre-screen, refuse to post or remove any Content as we deem necessary or appropriate. By entering into this Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Bivwak pre-screens, refuses or removes any Content, you acknowledge that Bivwak will do so for Bivwak’s benefit, not yours. Without limiting the foregoing, Bivwak shall have the right to remove any Content that violates this Agreement or is otherwise objectionable.

c)     Storage.  Unless expressly agreed to by Bivwak in writing elsewhere, Bivwak has no obligation to store any of Your Content that you Make Available on the Bivwak Materials.  Bivwak has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Bivwak Materials.  Certain Services may enable you to specify the level at which such Services restrict access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Bivwak retains the right to create reasonable limits on Bivwak’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the Services and as otherwise determined by Bivwak in its sole discretion.

4)    OWNERSHIP.

a)     Bivwak Materials.  Except with respect to Your Content and User Content, you agree that Bivwak and its suppliers own all rights, title and interest in the Bivwak Materials (including without limitation any computer code, themes, objects, artwork, methods of operation, and software contained therein or enabled thereby).  You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or the Bivwak Materials.

b)    Trademarks.  Bivwak and other related graphics, logos, service marks and trade names used on or in connection with the Bivwak Materials or in connection with the Services are the trademarks of Bivwak and may not be used without permission in connection with any third-party products or services.  Other trademarks, service marks and trade names that may appear on or in the Bivwak Materials are the property of their respective owners.

c)     Your Content.  Bivwak does not claim ownership of Your Content.  However, when you as a User post or publish Your Content on or in the Bivwak Materials, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.  Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Bivwak Materials.

d)    License to Your Content.  Subject to any applicable account settings that you select, you grant Bivwak a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, publicly display, derive revenue or other remuneration from, and communicate to the public, Your Content (in whole or in part) and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right, including moral rights, that may exist in Your Content.  Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Bivwak Materials, including workspaces. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.  You agree that you, not Bivwak, are responsible for all of Your Content that you Make Available on or in the Bivwak Materials.  Any Content posted by you may not contain nudity, violence, sexually explicit, or offensive subject matter (as determined by Bivwak in its sole discretion). You may not Make Available a photograph of another person without that person’s permission.

e)    Username.  Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on the Bivwak Materials, you hereby expressly permit Bivwak to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.

f)      Your Account.  Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Bivwak.  

g)     Feedback.  You agree that submission of any ideas, suggestions, documents, and/or proposals to Bivwak through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Bivwak has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.  You represent and warrant that you have all rights necessary to submit the Feedback.  You hereby grant to Bivwak a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Bivwak Materials and/or Bivwak’s business.

5)    USER CONDUCT. As a condition of use, you agree not to use the Services or Bivwak Materials for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through the Bivwak Materials that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Bivwak’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Bivwak; (vi) interferes with or attempt to interfere with the proper functioning of Bivwak Materials or uses Bivwak Materials in any way not expressly permitted by this Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against Bivwak Materials, including but not limited to violating or attempting to violate any security features of Bivwak Materials, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Bivwak Materials, introducing viruses, worms, or similar harmful code into Bivwak Materials, or interfering or attempting to interfere with use of Bivwak Materials by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Bivwak Materials.

6)    INTERACTIONS WITH OTHER USERS.

a)     User Responsibility.  You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Services; provided, however, that Bivwak reserves the right, but has no obligation, to intercede in such disputes.  You agree that Bivwak will not be responsible for any liability incurred as the result of such interactions.

b)    Damage to Property. You agree that, if your use of a Property in connection with a Booking results in any damage to such Property, you will compensate the Landowner of such property for any such damage. In the event that a Landowner alleges that a Camper’s use of such Landowner’s Property in connection with a Booking results in any damage to such Property (each, a “Damages Claim”), the Camper will be notified of such Damages Claim. After being notified of the Damages Claim and given forty-eight (48) hours to respond to such Damages Claim in accordance with the methods set forth in the notice, payment in the amount alleged by the Landowner in the Damages Claim will be charged to and taken from the credit card on file in the Camper’s Account. You agree that we are authorized to immediately charge your Account for all fees and charges due and payable hereunder and that no additional notice or consent is required. IF WE ARE UNABLE TO CHARGE THE CREDIT CARD ON FILE OR OTHERWISE COLLECT PAYMENT FROM YOU IN CONNECTION WITH A DAMAGES CLAIM, YOU AGREE TO REMIT PAYMENT IN THE AMOUNT ALLEGED IN THE DAMAGES CLAIM TO THE APPLICABLE LANDOWNER OR TO BIVWAK, AS APPLICABLE. YOU AGREE TO COOPERATE WITH AND ASSIST BIVWAK IN GOOD FAITH, AND TO PROVIDE BIVWAK WITH SUCH INFORMATION AND TAKE SUCH ACTIONS AS MAY BE REASONABLY REQUESTED BY BIVWAK, IN CONNECTION WITH ANY DAMAGES CLAIM. Upon Bivwak’s reasonable request and at no cost to you, you agree to participate in mediation or similar resolution process in connection with any disputed Damages Claim, which process will be conducted by Bivwak or a third party selected by Bivwak.

7)    THIRD-PARTY SERVICES. 

a)     Third-Party Websites & Ads. The Bivwak Materials may contain links to third-party websites (“Third-Party Websites”) and advertisements for third parties (collectively, “Third-Party Websites & Ads”).  When you click on a link to a Third-Party Website or Ad, we will not warn you that you have left the Bivwak Materials and are subject to the terms and conditions (including privacy policies) of another website or destination.  Such Third-Party Websites are not under the control of Bivwak.  Bivwak is not responsible for any Third-Party Websites & Ads.  Bivwak provides these Third-Party Websites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites & Ads, or their products or services.  You use all links in Third-Party Websites & Ads at your own risk. When you leave our Website, our Terms and policies no longer govern.  You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

b)    Third-Party Booking Services. In some cases, when you view a Listing for a Property you may be redirected to a third-party website or service (each, a “Third-Party Booking Service”) to book such Property. In such event, the terms and conditions, including the privacy policy, of such Third-Party Booking Service shall apply to your interactions with and any booking you make through such Service.

8)    FEES; PAYMENT.  There are no fees applicable to browsing the Website.

a)     Payments. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. Except as may be expressly set forth herein or in the Booking Cancellation Policy , all fees are non-cancellable and non-refundable.

b)    Bivwak Bookings. If you use the Services to make a Booking through Bivwak, you agree to pay any and all fees or charges and applicable taxes associated with such Booking, including without limitation any fees charged by Bivwak for the Services in connection with such Booking. You acknowledge and agree that you, and not Bivwak, will be responsible for performing the obligations of any agreement you may have with any other User (including without limitation any Booking), and that, except with respect to payment obligations expressly set forth hereunder, Bivwak disclaims all liability arising from or related to any such agreements.

c)     Payment Processor. Bivwak uses a third-party payment processor to process payments (“Payment Processor”). By submitting your payment information to or through our Payment Processor, you authorize us to charge the applicable payment method (the “Payment Provider”) for your Booking and any related fees or charges. You represent that you will not use any credit card or other form of payment unless you have all necessary authorization to do so. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not this Agreement to determine your rights and liabilities with respect to that Payment Provider.  You agree that we are authorized to immediately invoice your Account for all fees and charges due and payable to Bivwak hereunder (including any damage you cause at or to a Property) and that no additional notice, authorization, or consent is required. We reserve the right at any time to change our prices and billing methods, either immediately upon posting on the Bivwak Properties or by e-mail or other electronic notice to you.

d)    Disputes.  If you in good faith dispute any fees or charges to your Account, you must notify us in writing within seven (7) days after receiving the applicable statement to your credit card or other payment method. If you do not provide written notice of dispute within such window, any such dispute will be deemed waived.  Billing disputes should be notified to the following address: Bivwak LLC, 6186 S. Southwood Drive, Centennial, CO, 80121.

e)    Promotions.  From time to time, we may elect to run or otherwise make available promotional offers, deals and/or codes for Property (each, a “Promotion”). Any such Promotion must be used within the specified time of the Promotion. Promotional codes are generally limited to one use per customer. We may post additional terms applicable to a Promotion on the Website or the Services.

f)      Taxes. If Company determines it has an obligation to collect Sales Tax from you in connection with this Agreement, Company shall collect such Sales Tax in addition to the Fee(s). If any Bookings or other Services or payments in connection with the same under the Agreement are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Bivwak, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant authority, and you will indemnify Bivwak for any liability or expense Bivwak may incur in connection with such Sales Taxes. Upon Bivwak’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any applicable sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax, including without limitation taxes that may be applicable in the jurisdiction in which a Property is located. You agree to make all payments of fees to Bivwak free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Bivwak will be your sole responsibility, and you will provide Bivwak with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.

9)    INDEMNIFICATION.  You agree to indemnify and hold harmless Bivwak, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Bivwak Parties”) from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Bivwak Materials; (c) your violation of this Agreement; (d) your violation of any rights of another party, including any Users; (e) your violation of any applicable laws, rules or regulations; (f) your interaction with any User or booking of any Property; and (g) the use, condition or rental of a Property by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of a rental, booking or use of a Property.  Bivwak reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Bivwak in asserting any available defenses.  You agree that the provisions in this section will survive any termination of your Account, this Agreement or your access to the Bivwak Materials.

10) DISCLAIMER OF WARRANTIES.

a)     As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE BIVWAK MATERIALS IS AT YOUR SOLE RISK, AND THE BIVWAK MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS.  THE BIVWAK PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES OR BIVWAK MATERIALS.

i)      THE SERVICES AND BIVWAK MATERIALS INCLUDE PLATFORMS THROUGH WHICH CAMPERS AND LANDOWNERS CAN INTERACT AND TRANSACT WITH ONE ANOTHER. BIVWAK IS NOT A REAL ESTATE BROKER, REAL ESTATE SALESPERSON, INSURER, OR REAL ESTATE AGENT. BIVWAK HAS NO CONTROL OVER THE CONDUCT OF LANDOWNERS, CAMPERS, OTHER USERS OF THE WEBSITE, APP AND/OR SERVICES, OR ANY OTHER THIRD-PARTY OR THIRD-PARTY PROPERTY. WE ARE NOT AN OWNER, OPERATOR, OR PROVIDER OF ANY PROPERTY, NOR DO WE MANAGE AND/OR CONTROL PROPERTIES, TRANSPORTATION OR TRAVEL SERVICES, OR ANY OTHER ASPECT OF YOUR OFFLINE EXPERIENCE WITH RELATION TO A LISTING, A BOOKING, OR A PROPERTY. WHEN YOU ACCESS OR USE THE WEBSITE, APP, OR ANY SERVICES, YOU AGREE THAT ANY CLAIM ARISING OUT OF OR OTHERWISE IN CONNECTION WITH ANY ACTIONS OR OMISSIONS OF OTHER USERS OR OTHER THIRD PARTIES WILL BE LIMITED TO A CLAIM AGAINST THE USERS OR OTHER THIRD PARTIES WHO CAUSED YOU HARM. YOU AGREE NOT TO ATTEMPT TO IMPOSE LIABILITY ON OR SEEK ANY LEGAL REMEDY FROM BIVWAK WITH RESPECT TO SUCH THIRD-PARTY ACTIONS OR OMISSIONS. WE ENCOURAGE YOU TO COMMUNICATE DIRECTLY WITH OTHER USERS REGARDING ANY LISTINGS, BOOKINGS, OR OTHER USE OF THE SERVICES THAT INVOLVES TRANSACTIONS OR OTHER INTERACTIONS WITH SUCH USERS.

ii)     THE BIVWAK PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE BIVWAK MATERIALS OR ANY PROPERTY ACCESSED AS RESULT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE BIVWAK MATERIALS WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE BIVWAK MATERIALS WILL BE CORRECTED.

iii)   ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE BIVWAK MATERIALS, INCLUDING ANY LISTING, IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE BIVWAK MATERIALS, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.

iv)   THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS.  BIVWAK MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THEIR QUALITY, EFFECTIVENESS, AND REPUTATION.

v)     NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BIVWAK OR THROUGH THE BIVWAK MATERIALS WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

vi)   FROM TIME TO TIME, BIVWAK MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT.  SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT BIVWAK’S SOLE DISCRETION.  THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.

b)    No Liability for Conduct of Third Parties.  YOU ACKNOWLEDGE AND AGREE THAT BIVWAK PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD BIVWAK PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING ANY OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.

c)     No Liability for Conduct of Other Users.  YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE BIVWAK MATERIALS, INCLUDING WITHOUT LIMITATION CAMPERS AND LANDOWNERS. YOU UNDERSTAND THAT BIVWAK DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS, WHETHER CAMPERS OR LANDOWNERS. BIVWAK MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF ANY USERS OF THE BIVWAK MATERIALS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE BIVWAK MATERIALS.  PLEASE TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF OUR SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.  YOU ACKNOWLEDGE AND AGREE THAT BIVWAK DOES NOT CONDUCT BACKGROUND CHECKS ON ANY USER OR VERIFY THE ACCURACY OF ANY PROPERTY OR LISTING.

11) LIMITATION OF LIABILITY.

a)     Disclaimer of Certain Damages.  YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL THE BIVWAK PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE BIVWAK MATERIALS OR ANY BOOKING, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT BIVWAK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE BIVWAK MATERIALS, OR ANY EXPERIENCE ON OR IN CONNECTION WITH ANY PROPERTY, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE BIVWAK MATERIALS; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE BIVWAK MATERIALS; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR IN CONNECTION WITH THE BIVWAK MATERIALS; OR (5) ANY OTHER MATTER RELATED TO THE BIVWAK MATERIALS OR THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A BIVWAK PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A BIVWAK PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A BIVWAK PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. BIVWAK DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY BIVWAK’S NEGLIGENCE; (ii) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (iii) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY ENGLISH LAW.

b)    Cap on Liability.  TO THE FULLEST EXTENT PROVIDED BY LAW, THE BIVWAK PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT RETAINED BY BIVWAK FROM YOU IN THE TRANSACTION OR OTHER ACT OR OMISSION GIVING RISE TO SUCH LIABILITY; (b) $100; OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES.  THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A BIVWAK PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A BIVWAK PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A BIVWAK PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

c)     User Content.  EXCEPT FOR BIVWAK’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE PRIVACY POLICY, BIVWAK PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

d)    Basis of the Bargain.  THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BIVWAK AND YOU.

e)    Exclusion of Damages.  CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

12) PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT.  It is Bivwak’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Bivwak by the copyright owner or the copyright owner’s legal agent.  Without limiting the foregoing, if you believe that your work has been copied and posted on the Bivwak Materials in a way that constitutes copyright infringement, please provide our copyright agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Bivwak Materials of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.  Contact information for Bivwak’s copyright agent for notice of claims of copyright infringement is as follows: Bivwak LLC, 6186 S. Southwood Drive, Centennial, CO, 80121; ATTN: Copyright Agent.

13) TERM AND TERMINATION.  

a)     Term.  This Agreement commences on the date when you accept it (as described in the preamble above) and remains in full force and effect while you use the Services, unless terminated earlier.

b)    Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier of (a) the date you first used the Services or (b) the date you accepted the Agreement, and will remain in full force and effect while you use the Services, unless earlier terminated in accordance with the Agreement.

c)     Termination of Services by Bivwak.  Bivwak has the right to suspend or terminate any Services provided to you for any reason. You agree that all terminations for cause shall be made in Bivwak’s sole discretion and that Bivwak shall not be liable to you or any third party for any termination of your Account.

d)    Termination of Services by You.  If you want to terminate the Services provided by Bivwak, you may do so by (a) notifying Bivwak at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Bivwak’s address set forth below.

e)    Effect of Termination.  Termination of any Service includes removal of access to such Service and barring of further use of the Service.  Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content.  Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases.  Bivwak will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content.  All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

f)      No Subsequent Registration.  If your registration(s) with or ability to access the Bivwak Materials, or any other Bivwak community is discontinued by Bivwak due to your violation of any portion of this Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Bivwak Materials or any Bivwak community through use of a different username or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Bivwak Materials to which your access has been terminated.  In the event that you violate the immediately preceding sentence, Bivwak reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.

14) INTERNATIONAL USERS.  The Bivwak Materials can be accessed from countries around the world and may contain references to Services and Content that are not available in your country.  These references do not imply that Bivwak intends to announce such Services or Content in your country. Except as otherwise set forth in connection with a particular Service, the Bivwak Materials are controlled and offered by Bivwak from its facilities in the United States of America and made available to end users in the United States, and Bivwak makes no representations that any Bivwak Materials are appropriate or available for use in other locations.  Those who access or use the Bivwak Materials from other jurisdictions do so at their own volition and are responsible for compliance with local law.

15) GENERAL PROVISIONS.

a)     Electronic Communications.  The communications between you and Bivwak use electronic means, whether you visit the Bivwak Materials or send Bivwak e-mails, or whether Bivwak posts notices on the Bivwak Materials or communicates with you via e-mail.  For contractual purposes, you (a) consent to receive communications from Bivwak in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Bivwak provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights.

b)    Release of Bivwak.  You hereby release Bivwak Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Bivwak Materials, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of this Agreement or your use of the Bivwak Materials.  IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Bivwak Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services.

c)     Assumption of Risk Related to Camping. When you make a Booking, you freely, voluntarily and without duress release the Landowner offering such Booking from liability in connection with such Booking or your use of the Property. You acknowledge that camping might cause injuries, death, property damage or other harm to third parties. You accept and voluntarily incur all risks of any such injuries, damages or harm which arise during or result from your interaction with the Property except as and only to the extent caused by the sole negligence or intentional misconduct of the Landowner or its agents and representatives.

d)    Assignment.  This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Bivwak’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

e)    Force Majeure.  Bivwak shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, pandemics, epidemics, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

f)      Compliance.  If you believe that Bivwak has not adhered to this Agreement, please contact Bivwak by contacting us at camp@gobivwak.com.  We will do our best to address your concerns.  If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.

g)     Choice of Language.  It is the express wish of the parties that this Agreement and all related documents have been drawn up in English.  

h)    Notice.  Where Bivwak requires that you provide an e-mail address, you are responsible for providing Bivwak with your most current e-mail address.  In the event that the last e-mail address you provided to Bivwak is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Bivwak’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.  You may give notice to Bivwak at the following address: Bivwak LLC, 6186 S. Southwood Drive, Centennial, CO, 80121. Such notice shall be deemed given when received by Bivwak by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.

i)      Waiver.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

j)      Severability.  If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

k)     Export Control.  You may not use, export, import, or transfer the Bivwak Materials except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Bivwak Materials, and any other applicable laws.  In particular, but without limitation, the Bivwak Materials may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Bivwak Materials, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Bivwak Materials for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.  You acknowledge and agree that products, services or technology provided by Bivwak are subject to the export control laws and regulations of the United States.  You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Bivwak products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

l)      Entire Agreement.  This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

16) TERMS APPLICABLE TO US USERS. If you live in the United States, this section applies to you.

a)     Governing law, Jurisdiction and Venue. This Agreement is governed by Colorado law, without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement section of this Agreement. However, the governing law provision regarding the interpretation of this Agreement is not intended to create any other substantive right to residents of other states or territories to assert claims under Colorado law, whether that be by statute, common law, or otherwise. This section is only intended to specify the use of Colorado law to interpret this Agreement. Both you and Bivwak agree that all claims and disputes arising out of or relating to this Agreement (and any Supplemental Terms unless expressly otherwise set forth in such Supplemental Terms) that are not subject to arbitration per this Agreement will be resolved exclusively in the U.S. District Court - District of Colorado or a state court located in Denver County, and you hereby submit to the exclusive jurisdiction thereof.

b)    Arbitration Agreement. You and Bivwak agree to the arbitration and dispute resolution terms in this section (the “Arbitration Agreement”). For the purposes of this Arbitration Agreement, references to “Bivwak,” “you,” “we” and “us” include our respective subsidiaries, affiliates, agents, employees, employers, partners, shareholders, predecessors in interest, successors, assigns, and heirs. We encourage you to carefully read these important terms, which include a requirement that claims arising out of or relating to this Agreement (and any Supplemental Terms unless expressly otherwise set forth in such Supplemental Terms) shall be brought individually and subject to arbitration, subject to the exceptions in Section 16.b(i), Section 16.b(ii), and Section 16.b(iii), and include instructions for how to opt out if you do not agree.

i)      Small Claims Court. Notwithstanding the foregoing, either you or Bivwak may bring an individual action in small claims court.

ii)     Emergency Equitable Relief. Notwithstanding the foregoing, either you or Bivwak may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.

iii)   Claims not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secrets shall not be subject to this Arbitration Agreement.

iv)   Applicability. You agree that any dispute or claim relating in any way to your access or use of the Services (including without limitation any Landowner Services), or to any aspect of your relationship with Bivwak, will be resolved by binding arbitration, rather than in court, except that you may assert certain qualifying claims in small claims court in accordance with the terms above.

v)     Arbitration rules and forum. This Agreement evidences a transaction involving interstate commerce and that notwithstanding the provision above with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. §1 et seq. (“FAA”) will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If for whatever reason the FAA is inapplicable, the state law governing arbitration agreements in the state in which you reside shall apply. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Bivwak LLC, 6186 S. Southwood Drive, Centennial, CO, 80121. Your letter must include (1) the name, telephone number, mailing address, and email address of the party seeking arbitration and the Account username, if any, as well as the email address associated with the Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good faith calculation of the amount in controversy in United States Dollars; (4) the party’s portion of the applicable filing fee. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/. All other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you can’t afford to pay JAMS’s filing, administrative, hearing, and/or other fees and can’t obtain a waiver from JAMS, Bivwak will pay them for you. In addition, Bivwak will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims, such amounts totalling less than $10,000, unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you reside, or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

vi)   Authority of arbitrator. The arbitrator shall have exclusive authority to (i) determine the scope and enforceability of this Arbitration Agreement and (ii) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The exceptions to the preceding sentence are (1) all disputes arising out of or relating to the class action waiver, including any claim that all or part of the class action waiver is unenforceable, illegal, void or voidable, or such class action waiver has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) all disputes arising out of or relating to the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (3) all disputes arising out of or relating to whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration will decide the rights and liabilities, if any, of you and Bivwak. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

vii)  Waiver of jury trial. YOU AND BIVWAK HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review. This clause shall not preclude parties from seeking provision remedies in aid of arbitration from a court of appropriate jurisdiction.

viii) Waiver of class or other non-individualized relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CAN’T BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the federal or state court located in Denver, Colorado. All other claims shall be arbitrated.

ix)   30-day right to opt out. You have the right to opt out of the provisions of these Terms that mandate arbitration by sending written notice of your decision to opt out to: Bivwak LLC, 6186 S. Southwood Drive, Centennial, CO, 80121, within 30 days after first becoming subject to a version of these Terms containing an arbitration provision. Your notice must include your name and address, your Bivwak username (if any), the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of arbitration, all other parts of these Terms will continue to apply to you. Opting out of arbitration has no effect on any other arbitration agreements that you may currently have, or may enter into in the future, with us.

x)     Severability. Except as provided in Section 16.2(h) (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

xi)   Survival of Arbitration Agreement. This Arbitration Agreement will survive the termination of your relationship with Bivwak.

xii)  Material Changes. Notwithstanding any provision in this Agreement to the contrary, we agree that if Bivwak makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Bivwak at the following address: Bivwak LLC, 6186 S. Southwood Drive, Centennial, CO, 80121.