Search Scuba Payment Terms of Service
Please read these Payments Terms of Service carefully as they contain important information about your legal rights, remedies and obligations. By using the Payment Services, you agree to comply with and be bound by these Payments Terms of Service.
Please note: Section 22 of these Payments Terms of Service contains an arbitration clause and class action waiver that applies to all Search Scuba Members. If your Country of Residence (as defined below) is the United States, this provision applies to all disputes with Search Scuba Payments. If your Country of Residence is outside of the United States, this provision applies to any action you bring against Search Scuba Payments in the United States. It affects how disputes with Search Scuba Payments are resolved. By accepting these Payments Terms of Service, you agree to be bound by this arbitration clause and class action waiver. Please read it carefully.
Last Updated: March 30, 2019
These Payments Terms of Service (“Payments Terms”) constitute a legally binding agreement (“Agreement”) between you and Search Scuba Payments governing the Payment Services (defined below) conducted through or in connection with the Search Scuba Platform.
When these Payments Terms mention “Search Scuba Payments,” “we,” “us,” or “our,” it refers to the Search Scuba Payments company you are contracting with for Payment Services, which is Search Scuba, LLC.
The Search Scuba Terms of Service (“Search Scuba Terms”) separately govern your use of the Search Scuba Platform. All capitalized terms have the meaning set forth in the Search Scuba Terms unless otherwise defined in these Payments Terms.
In certain situations, customers may be required to enter into unique payment processing agreements with Search Scuba Payments. To the extent that there is a conflict between these Payment Terms and terms and conditions set forth in any relevant payment processing agreement, the latter terms and conditions will take precedence, unless specified otherwise.
Table of Contents
- Scope and Use of the Payment Services
- Key Definitions
- Modification of these Payments Terms
- Eligibility, Member Verification
- Account Registration
- Payment Methods
- Financial Terms for Dive Shops
- Financial Terms for Divers
- Appointment of Search Scuba Payments as Limited Payment Collection Agent
- General Financial Terms
- Security Deposits
- Currency Conversion
- Abandoned Property
- Prohibited Activities
- Intellectual Property Ownership, Rights Notices
- Termination, Suspension, and other Measures
- Applicable Law and Jurisdiction
- Dispute Resolution and Arbitration Agreement
- General Provisions
- Contacting Search Scuba Payments
1. Scope and Use of the Payment Services
1.1 Search Scuba Payments provides payments services to Members, including payment collection services, and payments, in connection with and through the Search Scuba Platform (“Payment Services”).
1.2 Search Scuba Payments may restrict the availability of the Payment Services, or certain services or features thereof, to carry out maintenance measures that ensure the proper or improved functioning of the Payment Services. Search Scuba Payments may improve, enhance and modify the Payment Services and introduce new Payment Services from time to time.
1.3 The Payment Services may contain links to third-party websites or resources (“Third-Party Services”). Such Third-Party Services are subject to different terms and conditions and privacy practices and Members should review them independently. Search Scuba Payments is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by Search Scuba Payments of such Third-Party Services.
1.4 You may not use the Payment Services except as authorized by United States law, the laws of the jurisdiction that is your Country of Residence, and any other applicable laws. In particular, but without limitation, the Payment Services may not be used to send or receive funds: (i) into any United States embargoed countries; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. You represent and warrant that: (i) neither you nor your Dive Shops Services are located or take place 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. In addition to complying with the above, you must also comply with any relevant export control laws in your local jurisdiction.
1.5 Your access to or use of certain Payment Services may be subject to, or require you to accept, additional terms and conditions. If there is a conflict between these Payments Terms and terms and conditions applicable for a specific Payment Service, the latter terms and conditions will take precedence with respect to your use of or access to that Payment Service, unless specified otherwise.
2. Key Definitions
“Country of Residence” means the jurisdiction associated with your Search Scuba Account as determined by Search Scuba’s assessment of your residence using various data attributes associated with your Search Scuba Account.
“Payment Method” means a financial instrument that you have added to your Search Scuba Account, such as a credit card, debit card, or PayPal account.
3. Modification of these Payments Terms
Search Scuba Payments reserves the right to modify these Payments Terms at any time in accordance with this provision. If we make changes to these Payments Terms, we will post the revised Payments Terms on the Search Scuba Platform and update the “Last Updated” date at the top of these Payments Terms. We will also provide you with notice by email of the modification at least thirty (30) days before the date they become effective, however, Members contracting with Search Scuba Payments UK will receive notice at least two (2) months prior to the effective date. If you disagree with the revised Payments Terms, you may terminate this Agreement with immediate effect. We will inform you about your right of refusal and your right to terminate this Agreement in the notification email. If you do not terminate your Agreement before the date the revised Terms become effective, your continued use of the Payment Services will constitute acceptance of the revised Payments Terms.
4. Eligibility, Member Verification
4.1 You must be at least 18 years old and able to enter into legally binding contracts to use the Payment Services. By using the Payment Services you represent and warrant that you are 18 or older.
4.2 If you are agreeing to these Payments Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Payments Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
4.3 Search Scuba Payments may make access to and use of certain areas or features of the Payment Services subject to certain conditions or requirements, such as completing a verification process or meeting specific eligibility criteria.
4.4 We may make inquiries we consider necessary to help verify or check your identity or prevent fraud. Towards this end, you authorize Search Scuba Payments to screen you against third party databases or other sources and request reports from service providers. In some jurisdictions, we have a legal obligation to collect identity information to comply with anti-money laundering regulations. This may include (i) asking you to provide a form of government identification (e.g., driver’s license or passport), your date of birth, your address, and other information; (ii) requiring you to take steps to confirm ownership of your email address or Payment Methods; or (iii) attempting to screen your information against third-party databases. Search Scuba Payments reserves the right to close, suspend, or limit access to the Payment Services in the event we are unable to obtain or verify any of this information.
5. Account Registration
5.1 In order to use the Payment Services, you must have an Search Scuba Account in good standing. If you or Search Scuba closes your Search Scuba Account for any reason, you will no longer be able to use the Payment Services.
5.2 You may authorize a third party to use your Search Scuba Account in accordance with the Search Scuba Terms. You acknowledge and agree that anyone you authorize to use your Search Scuba Account may use the Payment Services on your behalf and that you will be responsible for any payments made by such person.
6. Payment Methods
6.1 When you add a Payment Method to your Search Scuba Account, you will be asked to provide customary billing information such as name, billing address, and financial instrument information either to Search Scuba Payments or its third-party payment processor(s). You must provide accurate, current, and complete information when adding a Payment Method, and it is your obligation to keep your Payment Method up-to-date at all times.
6.2 When you add or use a new Payment Method, Search Scuba Payments may verify the Payment Method by authorizing a nominal amount or by authenticating your account via a third-party payment service provider. For further verification, we may also (i) authorize your Payment Method for one or two additional nominal amounts, and ask you to confirm these amounts, or (ii) require you to upload a billing statement. We may, and retain the right to, initiate refunds of these amounts from your Payment Method. When you add a Payment Method during checkout, we will automatically save that Payment Method to your Search Scuba Account so it can be used for a future transaction.
6.3 Please note that Payment Methods may involve the use of third-party payment service providers. These service providers may charge you additional fees when processing payments in connection with the Payment Services, and Search Scuba Payments is not responsible for any such fees and disclaims all liability in this regard. Your Payment Method may also be subject to additional terms and conditions imposed by the applicable third-party payment service provider; please review these terms and conditions before using your Payment Method.
6.4 You authorize Search Scuba Payments to store your Payment Method information and charge your Payment Method as outlined in these Payments Terms. If your Payment Method’s account information changes (e.g., account number, routing number, expiration date) as a result of re-issuance or otherwise, we may acquire that information from our financial services partner or your bank and update your Payment Method on file in your Search Scuba Account.
6.5 You are solely responsible for the accuracy and completeness of your Payment Method information. Search Scuba Payments is not responsible for any loss suffered by you as a result of incorrect Payment Method information provided by you.
7. Financial Terms for Dive Shops
7.1 Generally speaking, Search Scuba Payments will collect the Dive Shop Fees from a Diver at the time the Diver’s booking request is accepted by the Dive Shops, or at any other time mutually agreed between the Diver and Search Scuba Payments.
7.2.1 You will receive your Payout for a booking directly from the Diver on the day that the Dive Shop Service is provided.
7.2.2 You alone are responsible for collecting the required Payout from a Diver. Search Scuba makes no representation and retains no responsibility for any transaction and/or the Divers’ ability to make this payment.
7.2.3 The Payout that you collect will be the Total Fees for all services booked less Search Scuba’s Dive Shop Fees.
8. Financial Terms for Divers
8.1 You authorize Search Scuba Payments to charge your Payment Method the Total Fees for any booking requested in connection with your Search Scuba Account. Search Scuba Payments will collect the Total Fees in the manner agreed between you and Search Scuba Payments via the Search Scuba Platform. Search Scuba Payments will generally collect the Total Fees after the Dive Shops accepts your booking request. However, if you pay with a push Payment Method (such as Boletos or Sofort), Search Scuba Payments will collect the Total Fees at the time of your booking request or after the Dive Shops accepts your booking request. Search Scuba Payments may offer alternative options for the timing and manner of payment. Any additional fees for using offered payment options will be displayed via the Search Scuba Platform and included in the Total Fees, and you agree to pay such fees by selecting the payment option. Additional terms and conditions may apply for the use of an alternative payment option. If Search Scuba Payments is unable to collect the Total Fees as scheduled, Search Scuba Payments will collect the Total Fees at a later point. Once the payment transaction for your requested booking is successfully completed, you will receive a confirmation email.
8.2 Generally speaking, Total Fees charged by Search Scuba Payments for a transaction at the time of booking will include Dive Shop Fees, Security Deposit (if applicable), gear rental fee (if applicable), park fees, transportation costs and any applicable Taxes, plus Search Scuba’s $3 transaction fee per booking (“Diver Fee”).
8.3 With respect to “Fun Dives”, Search Scuba Payments will collect a deposit which will represent a portion of the Total Fees (with the exception of park fees and transportation costs). With respect to “Course Dives”, "Private Charters", "Hotel Stays", Search Scuba Payments will collect a $20 booking fee in addition to the Diver Fee. You alone are responsible for providing payment for the balance of the Total Fees directly to the Dive Shop on the day that Dive Shop Service is provided. Search Scuba makes no representation and retains no responsibility for this transaction and/or the Dive Shop’s payment services.
8.4 When you request to book a Listing, Search Scuba Payments may also (i) obtain a pre-authorization via your Payment Method for the Total Fees,(ii) charge or authorize your Payment Method a nominal amount, to verify your Payment Method, or (iii) authenticate your account via a third-party payment service provider to verify your Payment Method.
8.5 If a requested booking is cancelled either because it is not accepted by the Dive Shops or you cancel the booking request before it is accepted by the Dive Shops, any amounts collected by Search Scuba Payments will be refunded to you, and any pre-authorization of your Payment Method will be released (if applicable). The timing to receive the refund or for the pre-authorization to be released will vary based on the Payment Method and any applicable payment system (e.g., Visa, MasterCard, etc.) rules.
8.6 You authorize Search Scuba Payments to perform the Payment Method verifications described in Sections 6 and 8, and to charge your Payment Method for any bookings made in connection with your Search Scuba Account. You hereby authorize Search Scuba Payments to collect any amounts due, by charging the Payment Method provided at checkout, either directly by Search Scuba Payments or indirectly, via a third-party online payment processor, and/or by one or more of the payment methods available on the Search Scuba Platform (such as gift cards).
9. Appointment of Search Scuba Payments as Limited Payment Collection Agent
9.1 Each Member collecting payment for services provided via the Search Scuba Platform (such as certain transactions facilitated through the Resolution Center) (“Providing Member”) hereby appoints Search Scuba Payments as the Providing Member’s payment collection agent solely for the limited purpose of accepting funds from Members purchasing such services (“Purchasing Members”).
9.2 Each Providing Member agrees that payment made by a Purchasing Member through Search Scuba Payments, shall be considered the same as a payment made directly to the Providing Member, and the Providing Member will provide the purchased services to the Purchasing Member in the agreed-upon manner as if the Providing Member has received the payment directly from the Purchasing Member. Each Providing Member agrees that Search Scuba Payments may refund the Purchasing Member in accordance with the Search Scuba Terms. Each Providing Member understands that Search Scuba Payments’ obligation to pay the Providing Member is subject to and conditional upon successful receipt of the associated payments from Purchasing Members. Search Scuba Payments guarantees payments to Providing Members only for such amounts that have been successfully received by Search Scuba Payments from Purchasing Members in accordance with these Payments Terms. In accepting appointment as the limited payment collection agent of the Providing Member, Search Scuba Payments assumes no liability for any acts or omissions of the Providing Member.
9.3 Each Purchasing Member acknowledges and agrees that, notwithstanding the fact that Search Scuba Payments is not a party to the agreement between you and the Providing Member, Search Scuba Payments acts as the Providing Member’s payment collection agent for the limited purpose of accepting payments from you on behalf of the Providing Member. Upon your payment of the funds to Search Scuba Payments, your payment obligation to the Providing Member for the agreed upon amount is extinguished, and Search Scuba Payments is responsible for remitting the funds to the Providing Member in the manner described in these Payments Terms, which constitute Search Scuba Payments’ agreement with the Purchasing Member. In the event that Search Scuba Payments does not remit any such amounts, the Providing Member will have recourse only against Search Scuba Payments and not the Purchasing Member directly.
10. General Financial Terms
Search Scuba Payments may charge fees for use of certain Payment Services and any applicable fees will be disclosed to Members via the Search Scuba Platform.
10.2 Payment Authorizations
You authorize Search Scuba Payments to collect from you amounts due pursuant to these Payment Terms or the Search Scuba Terms. Specifically, you authorize Search Scuba Payments to collect from you:
Any amount due to Search Scuba (e.g., as a result of your bookings, Booking Modifications, cancellations, or other actions as a Diver, Co-Payer, Dive Shops or user of the Search Scuba Platform), including reimbursement for costs prepaid by Search Scuba on your behalf, by charging any Payment Method on file in your Search Scuba Account (unless you have previously removed the authorization to charge such Payment Method(s)). Any funds collected by Search Scuba Payments will setoff the amount owed by you to Search Scuba and extinguish your obligation to Search Scuba.
Any amount due to a Providing Member from a Purchasing Member which Search Scuba collects as the Providing Member’s payment collection agent as further set out in Section 9 above.
Taxes, where applicable and as set out in the Search Scuba Terms.
Any amount paid through the Resolution Center in connection with your Search Scuba Account. Search Scuba Payments may do so by charging the Payment Method associated with the relevant booking, or any other Payment Method on file in your Search Scuba Account (unless you have previously removed the authorization to charge such Payment Method(s)).
Any Service Fees or cancellation fees imposed pursuant to the Search Scuba Terms (e.g., if, as a Dive Shops, you cancel a confirmed booking). Search Scuba Payments will be entitled to recover the amount of any such fees from you.
Fees, costs and/or expenses associated with a Damage Claim, including any Security Deposit, as set out in the Search Scuba Terms. If Search Scuba Payments is unable to collect from your Payment Method used to make the booking, you agree that Search Scuba Payments may charge any other Payment Method on file in your Search Scuba Account at the time of the Damage Claim (unless you have previously removed the authorization to charge such Payment Method(s)). Search Scuba Payments also reserves the right to otherwise collect payment from you and pursue any remedies available to Search Scuba Payments in this regard in situations in which you are responsible for a Damage Claim, including, but not limited to, in relation to any payment requests made by Dive Shops under the Search Scuba Dive Shops Guarantee.
Fees payable by Co-Payers as part of the Group Payment Service by charging any Payment Method on file in your Search Scuba Account (unless you have previously removed the authorization to charge such Payment Method(s)). Any funds collected by Search Scuba Payments will setoff the amount owed by you to Search Scuba and extinguish your obligation to Search Scuba.
In addition to any amount due as outlined above, if there are delinquent amounts or chargebacks associated with your Payment Method, you may be charged fees that are incidental to our collection of these delinquent amounts and chargebacks. Such fees or charges may include collection fees, convenience fees or other third-party charges.
10.3.1 Any refunds or credits due to a Member pursuant to the Search Scuba Terms will be initiated and remitted by Search Scuba Payments.
10.3.2 All refunds may be subject to the Search Scuba Terms, Extenuating Circumstances Policy, and Diver Refund Policy. If a Diver or Search Scuba decides for any reason to cancel a confirmed booking pursuant to the Search Scuba Terms, Diver Refund Policy, or Extenuating Circumstances Policy, you agree that Search Scuba Payments will not have any liability for such cancellations or refunds aside from its obligations to remit refunds pursuant to these Payments Terms.
10.4 Recurring Payments
10.4.1 For certain bookings, Search Scuba Payments may require a Diver to make recurring, incremental payments toward the Total Fees owed (“Recurring Payments”). More information on Recurring Payments (including the amount and the frequency of payments) will be made available via the Search Scuba Platform if applicable to a booking.
10.4.2 If Recurring Payments apply to a confirmed booking, then the Diver authorizes Search Scuba Payments to collect the Total Fees in the increments and at the frequency agreed to and identified via the Search Scuba Platform.
10.4.3 Divers may stop payment of a Recurring Payment by notifying Search Scuba Payments orally or in writing at least three (3) business days before the scheduled date of the payment. Search Scuba Payments may require that you give written confirmation of a stop-payment order within fourteen (14) days of an oral notification. If you fail to provide written confirmation within fourteen (14) days as requested, Search Scuba Payments is not obligated to honor your request to stop any future Recurring Payments. If you have any questions regarding your Recurring Payments, please contact Search Scuba Payments pursuant to Section 25.
10.5 Payment Processing Errors
We will take steps to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the same Payment Method used for the original payment by you, so that you end up receiving or paying the correct amount. This may be performed by Search Scuba Payments or a third party such as your financial institution.
If Search Scuba Payments is unable to collect any amounts you owe under these Payments Terms, Search Scuba Payments may engage in collection efforts to recover such amounts from you. Search Scuba Payments will deem any owed amounts overdue when, for authorized charges, ninety (90) days have elapsed after Search Scuba Payments first attempts to charge the Member’s Payment Method or the associated services have been provided, whichever is later. Any overdue amounts not collected within one hundred and eighty (180) days after they become overdue will be deemed to be in default. You hereby explicitly agree that all communication in relation to amounts owed will be made by electronic mail or by phone, as provided to Search Scuba and/or Search Scuba Payments by you. Such communication may be made by Search Scuba, Search Scuba Payments, or by anyone on their behalf, including but not limited to a third-party collection agent.
11. Security Deposits
11.1 If you as a Diver (i) agree to pay the Dive Shops in connection with a Damage Claim, or (ii) Search Scuba determines that you are responsible for damaging Dive Shop property or any personal or other property located at a Dive Shop pursuant to the Search Scuba Terms, you authorize Search Scuba Payments to charge the Payment Method used to make the booking in order to collect any Security Deposit associated with the Listing, as well as any amount of the Damage Claim exceeding any Security Deposit. If the Listing does not have a Security Deposit, Search Scuba Payments may charge the Payment Method used to make the booking for the amount of the Damage Claim. If we are unable to collect from your Payment Method used to make the booking, you agree that Search Scuba Payments may charge any other Payment Method on file (and not otherwise unauthorized) in your Search Scuba Account at the time of the Damage Claim.
11.2 Search Scuba Payments also reserves the right to otherwise collect payment from you and pursue any remedies available to Search Scuba Payments in situations in which you are responsible for a Damage Claim, including, but not limited to, in relation to any payment requests made by Dive Shops under the Search Scuba Dive Shops Guarantee.
12. Currency Conversion
Search Scuba Payments will process each transaction in the currency the Member selects via the Search Scuba Platform. The currencies available to make and receive payments for any given transaction may be limited for regulatory or operational reasons based on factors such as the Member’s selected Payment Method and/or the Member’s Country of Residence or Search Scuba contracting entity(ies). Any such limitations will be communicated via the Search Scuba Platform, and you will be prompted to select a different currency, Payment Method. Note that a Member’s third-party payment service provider may impose transaction, currency conversion or other fees based on the currency or Payment Method the Member selects to make or receive payments, and Search Scuba Payments is not responsible for any such fees and disclaims all liability in this regard.
13. Abandoned Property
If we cannot initiate a refund or pay other funds due to you for the relevant period of time set forth by your state, country, or other governing body in its unclaimed property laws, we may process the funds due to you in accordance with our legal obligations, including by submitting such funds to the appropriate governing body as required by law.
14. Prohibited Activities
You are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Payment Services. In connection with your use of the Payment Services, you may not and you agree that you will not and will not assist or enable others to:
- breach or circumvent any applicable laws or regulations, agreements with third parties, third-party rights, or the Search Scuba Terms, Policies, or Standards;
- use the Payment Services for any commercial or other purposes that are not expressly permitted by these Payments Terms;
- register or use any Payment Method with your Search Scuba Account that is not yours or you do not have authorization to use;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Search Scuba Payments or any of Search Scuba Payments’ providers or any other third party to protect the Payment Services;
- take any action that damages or adversely affects, or could damage or adversely affect, the performance or proper functioning of the Payment Services;
- attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Payment Services; or
- violate or infringe anyone else’s rights or otherwise cause harm to anyone.
15. Intellectual Property Ownership, Rights Notices
15.1 The Payment Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Payment Services, including all associated intellectual property rights, are the exclusive property of Search Scuba, Search Scuba Payments and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Payment Services. All trademarks, service marks, logos, trade names, and any other proprietary designations of Search Scuba or Search Scuba Payments used on or in connection with the Payment Services are trademarks or registered trademarks of Search Scuba or Search Scuba Payments in the United States and abroad. Trademarks, service marks, logos, trade names, and any other proprietary designations of third parties used on or in connection with Payment Services are used for identification purposes only and may be the property of their respective owners.
15.2 You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast, or otherwise exploit the Payment Services, except as expressly permitted in these Payments Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Search Scuba, Search Scuba Payments, or its licensors, except for the licenses and rights expressly granted in these Payments Terms.
We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Payment Services (“Feedback”). You may submit Feedback by emailing us, through the “Contact” section of the Search Scuba Platform, or pursuant to Section 25 (“Contacting Search Scuba Payments”). Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.
17.1 If you choose to use the Payment Services, you do so voluntarily and at your sole risk. To the maximum extent permitted by law, the Payment Services are provided “as is”, without warranty of any kind, either express or implied.
17.2 Notwithstanding Search Scuba Payments’ appointment as the limited payment collection agent of Providing Members for the purposes of accepting payments from Purchasing Members through the Search Scuba Platform, Search Scuba Payments explicitly disclaims all liability for any act or omission of any Member or other third party. Search Scuba Payments does not have any duties or obligations as agent for each Providing Member except to the extent expressly set forth in these Payments Terms, and any additional duties or obligations as may be implied by law are, to the maximum extent permitted by applicable law, expressly excluded.
17.3 If we choose to conduct identity verification on any Member, to the extent permitted by applicable law, we disclaim warranties of any kind, either express or implied, that such checks will identify prior misconduct by a Member or guarantee that a Member will not engage in misconduct in the future.
17.4 The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights or warranties which cannot lawfully be excluded. However, the duration of any statutorily required warranties shall be limited to the maximum extent (if any) permitted by law.
18.1 Except as provided in Section 18.2, you acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Payment Services remains with you. If you permit or authorize another person to use your Search Scuba Account in any way, you are responsible for the actions taken by that person. Neither Search Scuba Payments nor any other party involved in creating, producing, or delivering the Payment Services will be liable for any incidental, special, exemplary, or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (i) these Payments Terms, (ii) from the use of or inability to use the Payment Services, or (iii) from any communications, interactions, or meetings with other Members or other persons with whom you communicate, interact, transact, or meet with as a result of your use of the Payment Services, whether based on warranty, contract, tort (including negligence), product liability, or any other legal theory, and whether or not Search Scuba Payments has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. Except for our obligations to pay amounts to applicable Providing Members pursuant to these Payments Terms or an approved payment request under the Search Scuba Dive Shops Guarantee, in no event will Search Scuba Payments’ aggregate liability arising out of or in connection with these Payments Terms and your use of the Payment Services including, but not limited to, from your use of or inability to use the Payment Services, exceed the amounts you have paid or owe for bookings via the Search Scuba Platform as a Diver in the twelve (12) month period prior to the event giving rise to the liability, or one hundred U.S. dollars (US$100), if no such payments have been made, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Search Scuba Payments and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you. If you reside outside of the U.S., this does not affect Search Scuba Payments’ liability for death or personal injury arising from its negligence, nor for fraudulent misrepresentation, misrepresentation as to a fundamental matter, or any other liability which cannot be excluded or limited under applicable law.
18.2 If you reside in the EU, Section 18.1 does not apply, and Search Scuba Payments is liable under statutory provisions for intent and gross negligence by us, our legal representatives, directors, or other vicarious agents. The same applies to the assumption of guarantees or any other strict liability, or in case of a culpable injury to life, limb, or health. Search Scuba Payments is liable for any negligent breaches of essential contractual obligations by us, our legal representatives, directors, or other vicarious agents. Essential contractual obligations are such duties of Search Scuba Payments in whose proper fulfillment you regularly trust and must trust for the proper execution of the contract but the amount shall be limited to the typically occurring foreseeable damage. Any additional liability of Search Scuba Payments is excluded to the maximum extent allowed by applicable law.
You agree to release, defend (at Search Scuba Payments’ option), indemnify, and hold Search Scuba Payments and its affiliates and subsidiaries, and their officers, directors, employees, and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your breach of these Payments Terms; (ii) your improper use of the Payment Services; (iii) Search Scuba Payments’ Collection and Remittance of Occupancy Taxes; or (iv) your breach of any laws, regulations, or third-party rights.
20. Termination, Suspension, and other Measures
20.1 You may terminate this Agreement at any time by sending us an email, or by following the termination procedures specified in the Search Scuba Terms. Terminating this Agreement will also serve as notice to cancel your Search Scuba Account pursuant to the Search Scuba Terms. If you cancel your Search Scuba Account as a Dive Shops, Search Scuba Payments will provide a full refund to any Divers with confirmed booking(s). If you cancel your Search Scuba Account as a Diver, Search Scuba Payments will initiate a refund for any confirmed booking(s) based on the Listing’s cancellation policy
20.2 Without limiting our rights specified below, Search Scuba Payments may terminate this Agreement for convenience at any time by giving you thirty (30) days' notice via email to your registered email address.
20.3 Search Scuba Payments may immediately, without notice terminate this Agreement if (i) you have materially breached your obligations under this Agreement; (ii) you have provided inaccurate, fraudulent, outdated, or incomplete information; (iii) you have violated applicable laws, regulations, or third-party rights; or (iv) Search Scuba Payments believes in good faith that such action is reasonably necessary to protect other Members, Search Scuba, Search Scuba Payments, or third parties (for example in the case of fraudulent behavior of a Member).
20.4 In addition, Search Scuba Payments may limit or temporarily or permanently suspend your use of or access to the Payment Services (i) to comply with applicable law, or the order or request of a court, law enforcement, or other administrative agency or governmental body, or if (ii) you have breached these Payments Terms, the Search Scuba Terms, applicable laws, regulations or third-party rights, (iii) you have provided inaccurate, fraudulent, outdated, or incomplete information regarding a Payment Method, or (iv) Search Scuba Payments believes in good faith that such action is reasonably necessary to protect the personal safety or property of Search Scuba, its Members, Search Scuba Payments, or third parties, or to prevent fraud or other illegal activity.
20.5 In case of non-material breaches and where appropriate, you will be given notice of any measure by Search Scuba Payments and an opportunity to resolve the issue to Search Scuba Payments' reasonable satisfaction.
20.6 If your access to or use of the Payment Services has been limited or this Agreement has been terminated by us, you may not register a new Search Scuba Account or attempt to access and use the Payment Services through other an Search Scuba Account of another Member.
21. Applicable Law and Jurisdiction
21.1 If you are contracting with Search Scuba Payments US, these Payments Terms will be interpreted in accordance with the laws of the State of New York and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) that are excluded from the Arbitration Agreement in Section 23 must be brought in state or federal court in San Francisco, California, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in New York, New York.
22. Dispute Resolution and Arbitration Agreement
22.1 This Dispute Resolution and Arbitration Agreement shall apply if you (i) are contracting with Search Scuba Payments US; or (ii) bring any claim against any Search Scuba Payments entity in the United States (to the extent not in conflict with Section 21).
22.2 Overview of Dispute Resolution Process. Search Scuba Payments is committed to participating in a consumer-friendly dispute resolution process. To that end, these Payments Terms provide for a two-part process for individuals to whom Section 23.1 applies: (1) an informal negotiation directly with Search Scuba’s customer service team, and (2) a binding arbitration administered by the American Arbitration Association (“AAA”) using its specially designed Consumer Arbitration Rules (as modified by this Section 22 and except as provided in Section 22.6). Specifically, the Consumer Arbitration Rules provide:
- Claims can be filed with AAA online (www.adr.org);
- Arbitrators must be neutral and no party may unilaterally select an arbitrator;
- Arbitrators must disclose any bias, interest in the result of the arbitration, or relationship with any party;
- Parties retain the right to seek relief in small claims court for certain claims, at their option;
- The initial filing fee for the consumer is capped at $200;
- The consumer gets to elect the hearing location and can elect to participate live, by phone, video conference, or, for claims under $25,000, by the submission of documents;
- The arbitrator can grant any remedy that the parties could have received in court to resolve the party’s individual claim.
22.3 Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and Search Scuba Payments each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. We will contact you at the email address you have provided to us; you can contact Search Scuba’s customer service team by emailing us. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.
22.4 Agreement to Arbitrate. You and Search Scuba Payments mutually agree that any dispute, claim or controversy arising out of or relating to these Payments Terms or the breach, termination, enforcement or interpretation thereof, or to the use of the Payment Services (collectively, “Disputes”) will be settled by binding arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and Search Scuba Payments agree that the arbitrator will decide that issue.
22.5 Exceptions to Arbitration Agreement. You and Search Scuba Payments each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
22.6 Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules and/or other AAA arbitration rules determined to be applicable by the AAA (the “AAA Rules“) then in effect, except as modified here. The AAA Rules are available at www.adr.org or by calling the AAA at 1–800–778–7879.
22.7 Modification to AAA Rules - Arbitration Hearing/Location. In order to make the arbitration most convenient to you, Search Scuba Payments agrees that any required arbitration hearing may be conducted, at your option, (a) in the county where you reside; (b) in San Francisco County; (c) in any other location to which you and Search Scuba Payments both agree; (d) via phone or video conference; or (e) for any claim or counterclaim under $25,000, by solely the submission of documents to the arbitrator.
22.8 Modification of AAA Rules - Attorney’s Fees and Costs. You and Search Scuba Payments agree that Search Scuba Payments will be responsible for payment of the balance of any initial filing fee under the AAA Rules in excess of $200 for claims of $75,000 or less. You may be entitled to seek an award of attorney fees and expenses if you prevail in arbitration, to the extent provided under applicable law and the AAA rules. Unless the arbitrator determines that your claim was frivolous or filed for the purpose of harassment, Search Scuba Payments agrees it will not seek, and hereby waives all rights it may have under applicable law or the AAA rules, to recover attorneys’ fees and expenses if it prevails in arbitration
22.9 Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
22.10 Jury Trial Waiver. You and Search Scuba Payments acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.
22.11 No Class Actions or Representative Proceedings. You and Search Scuba Payments acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding as to all Disputes. Further, unless you and Search Scuba Payments both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If this paragraph is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute.
22.12 Severability. Except as provided in Section 22.11, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
22.13 Changes. Notwithstanding the provisions of Section 3 (“Modification of these Payments Terms”), if Search Scuba Payments changes this Section 22 (“Dispute Resolution and Arbitration Agreement”) after the date you last accepted these Payments Terms (or accepted any subsequent changes to these Payments Terms), you may reject any such change by sending us written notice (including by email) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Search Scuba Payments’ email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Search Scuba Payments in accordance with the provisions of the “Dispute Resolution” section as of the date you last accepted these Payments Terms (or accepted any subsequent changes to these Payments Terms).
22.14 Survival. Except as provided in Section 22.12 and subject to Section 20.8, this Section 22 will survive any termination of these Payments Terms and will continue to apply even if you stop using the Payment Services or terminate your Search Scuba Account.
23. General Provisions
23.1 Except as they may be supplemented by additional terms and conditions, policies, guidelines, or standards, these Payments Terms constitute the entire Agreement between Search Scuba Payments and you regarding the subject matter hereof, and supersede any and all prior oral or written understandings or agreements between Search Scuba Payments and you regarding the Payment Services.
23.2 No joint venture, partnership, employment, or agency relationship exists between you or Search Scuba Payments as a result of this Agreement or your use of the Payment Services.
23.3 If any provision of these Payments Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.
23.4 Search Scuba Payments’ failure to enforce any right or provision in these Payments Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Payments Terms, the exercise by either party of any of its remedies under these Payments Terms will be without prejudice to its other remedies under these Payments Terms or otherwise permitted under law.
23.5 You may not assign, transfer, or delegate this Agreement and your rights and obligations hereunder without Search Scuba Payments’ prior written consent. Search Scuba Payments may without restriction assign, transfer, or delegate this Agreement and any rights and obligations, at its sole discretion, with thirty (30) days’ prior notice.
23.6 This Agreement does not and is not intended to confer any rights or remedies upon any person other than the parties. Notwithstanding the foregoing, the parties agree that the payment card networks are third-party beneficiaries of this Agreement for purposes of enforcing provisions related to payments, but that their consent or agreement is not necessary for any changes or modifications to this Agreement.
23.7 Unless specified otherwise, any notices or other communications permitted or required under this Agreement, will be in writing and given by Search Scuba Payments via email, Search Scuba Platform notification, or messaging service (including SMS and WeChat). For notices made to Members residing outside of Germany, the date of receipt will be deemed the date on which Search Scuba transmits the notice.
24. Contacting Search Scuba Payments
You may contact Search Scuba Payments regarding the Payment Services using the information below:
Search Scuba, LLC
15 Park Row, #25H
New York, NY 10038
United States of America
If you have any questions about these Payments Terms, please email us.