Operator Terms

1. Definitions

• "Operator Data" means the trip and sighting records created through the Service for your operation: species, counts, behavior, dates and times, locations, environmental conditions, vessel tracks, notes, audio, and associated wildlife identification photographs.
• "Guest Data" means personal information about your guests: names, email addresses, booking details, and guest engagement records (such as gallery opens, saves and review clicks).
• "Guest Photos" means the photographs you deliver to guests through the Service.
• "Crew" means the captains, naturalists, deckhands and other people you allow to use the Service on your behalf, whether they are your employees or contractors.
• "De-identified" means data that cannot reasonably be used to identify, or be linked to, you, any individual crew member, or any guest, and that we have committed not to re-identify.
• "Aggregated" means combined with data from other sources or operators so that no single operator's records can be picked out.
• "Research Organization" means a scientific research, academic, conservation, government resource management, or marine mammal response organization.

2. The Service

2.1 What we provide. We provide the Service as described on our website and in the product, as it changes over time. We may add, change or remove features. If we remove a feature that is central to the plan you pay for, we will tell you at least 30 days ahead, and you may cancel and receive a pro-rated refund of any prepaid fees for the remaining period.

2.2 Trial. A new account starts on a trial with the full product and a limited number of guest photo transfers, as shown at signup. When the trial allowance is used, sending stops until a paid plan is chosen. Nothing else is taken away.

2.3 Accounts and Crew. You are responsible for everyone you give access to, for keeping sign in details private, and for removing access when a crew member leaves. You are responsible for your Crew's use of the Service as if it were your own. Each person should have their own login, and one login belongs to one operator.

2.4 Crew consent. Before a crew member first starts a trip, the boat app asks them to read and accept a disclosure about location recording and data use. You will not ask a crew member to use the Service in a way that misrepresents that disclosure, and you are responsible for any notice or consent your own employment arrangements require.

3. Fees and billing

3.1 Plans. Fees are set by the plan you choose on our pricing page or in a written order. Plans renew automatically each month or year until cancelled.

3.2 Payment. Payments are processed by Stripe. You authorize us to charge your payment method for each renewal. Fees do not include taxes, which you pay where they apply.

3.3 Cancellation. You can cancel at any time in Billing. Cancellation takes effect at the end of the current billing period, and you keep access until then. Fees already paid are not refunded for a partial period, except as sections 2.1, 14 and 15.3 say.

3.4 Price changes. We will give at least 30 days' notice by email before a price change applies to you, and it takes effect at your next renewal after that notice.

3.5 No-charge accounts. Where we provide the Service without charge, we may end the no-charge arrangement on 60 days' notice. These Terms otherwise apply in full.

4. Your data

4.1 You own your Operator Data. Operator Data belongs to you. You can export it at any time, in the formats the Service offers, and use it however you choose, during and after your subscription.

4.2 License to Flukesend. You grant Flukesend a perpetual, irrevocable, worldwide, royalty-free, non-exclusive license to use, copy, store, modify, combine, analyze and create derivative works from Operator Data, and to sublicense it as permitted in this section, for these purposes:

• (a) to operate, secure, support and improve the Service, including training and evaluating the identification and analysis features built into it;
• (b) to share it with Research Organizations for research, conservation, wildlife management and animal response, under the conditions in section 4.4; and
• (c) in Aggregated and De-identified form, for any purpose, including commercial products such as regional wildlife reports.

We will not sell or license Operator Data that identifies you to anyone for commercial purposes. Commercial use is always Aggregated and De-identified.

4.3 Attribution is your choice. Your account has an attribution setting, in Settings under Your sighting data. It starts as anonymous. While it is anonymous, Operator Data shared with Research Organizations does not identify your company. You can choose to be named, and change that choice at any time; a change applies to sharing after it is made, not to data already shared.

4.4 Conditions on research sharing. When we share Operator Data with a Research Organization we will:

• (a) remove Guest Data, which is never shared under this section;
• (b) remove the identity of individual Crew members;
• (c) share under a written agreement that limits use to research, conservation, management and response purposes, prohibits attempts to re-identify you or your Crew, and prohibits resale; and
• (d) name your company only if your attribution setting allows it.

We may generalize or withhold precise locations where sharing them could harm wildlife or reveal a commercially sensitive pattern.

4.5 After your account closes. The license in 4.2 survives the end of these Terms. When your account closes, we remove your company's identity and Crew identities from the Operator Data we keep, and we delete Guest Data as set out in section 15.4. You keep every copy you have exported.

4.6 Emergency reports. When a crew member files an animal in distress report through the Service, you authorize us to deliver it, including its location, photos and the callback number the crew member provides, to the responders registered for that area.

4.7 What you confirm. You confirm that you have the rights needed to grant this license for the Operator Data your operation creates, including rights in photographs taken by your Crew (see section 6.2).

5. Guest Data

5.1 Your guests, your list. Guest Data belongs to you. As between us, you decide what Guest Data is collected and why, and we process it on your behalf as your service provider. Schedule A sets out our obligations when we do.

5.2 Your responsibilities. You are responsible for:

• (a) having a lawful basis to collect your guests' contact details and to have the Service email them their photos and a follow-up review request;
• (b) giving your guests any privacy notice the law requires of you, including that you use a service provider to deliver trip photos; and
• (c) the content of messages sent in your name, including your guest message and your review request.

5.3 What we do. The Service includes an unsubscribe link in review requests and honors it for your operation. We do not use Guest Data to market to your guests, we do not sell or share it, and we do not use it for our own purposes except to operate and secure the Service.

5.4 Guest requests. If a guest asks us to access or delete their data, we will act on it and let you know, or refer them to you where the request is yours to decide.

6. Photos, content and your brand

6.1 Guest Photos. You keep all rights in Guest Photos. You grant us a license to host, process, resize, cache and deliver them, and to run the identification features of the Service on them, only to provide the Service to you. We will not use Guest Photos in our own marketing without your written permission.

6.2 Crew photographs. You are responsible for having the rights to photographs your Crew take and upload through the Service. The Crew disclosure asks each crew member to grant you and Flukesend the licenses these Terms need, which matters most for crew who are contractors rather than employees.

6.3 Happywhale contributions. Where a crew member opts in, identification photographs and the encounter details that go with them may be contributed to Happywhale's public catalogue under that crew member's own Happywhale account and Happywhale's terms. You authorize those contributions for your operation, and you can ask us to turn the feature off for your account.

6.4 Your brand. You grant us a license to use your name, logo and brand colors inside the Service, including in guest emails, galleries and widgets sent in your name. We will not name you publicly as a customer without your permission.

6.5 Feedback. If you send us suggestions, we may use them without obligation to you.

7. Sharing between operators, and public pages

7.1 Your choices. The Service lets you choose to link boats with another operator, join your region's room, and publish a sightings widget or page. Each is off until you turn it on, and each can be turned off at any time. What each one shares is described in the product and in our Privacy Policy.

7.2 Data you receive from other operators through these features is confidential to the operators involved. You and your Crew may use it only for your trips, safety and wildlife viewing, and not publish, sell or pass it on.

7.3 We are not responsible for what another operator does with information you chose to share with them, or for decisions made from shared sightings.

7.4 Regional catalogue. The Service keeps a shared regional catalogue of individual whale identities. It holds identities, not who saw them or where.

8. Safety, wildlife and the law

8.1 Not a safety or navigation system. The Service is not navigation equipment, a collision avoidance system, or a replacement for a lookout, radio, charts or any required equipment. Positions and sightings from other boats may be delayed, rounded, incomplete or wrong.

8.2 Emergency reports are best effort. The animal in distress report delivers a report; it does not summon help. Crews must still call the responder hotline or use VHF channel 16. We do not guarantee that any report or text is delivered, read, or acted on.

8.3 Wildlife rules. You are responsible for following the wildlife viewing, vessel and permit rules wherever you operate. Information in the Service never authorizes an approach or an activity.

9. Identification and AI features

Some features use automated models, including models from third-party providers, to suggest species, match individual animals, grade fluke patterns, write summaries and answer questions. Their outputs are suggestions. They can be wrong. Review them before you rely on them or send them to guests, researchers or anyone else.

10. Acceptable use

You will not, and will not let anyone else:

• (a) use the Service to send messages to people who did not give you their details for your trip, or to send unrelated marketing;
• (b) upload content that is unlawful, infringing, or that you have no right to share;
• (c) try to access another operator's data, probe or disrupt the Service, or get around its limits;
• (d) copy, resell or reverse engineer the Service, except where the law does not allow this to be restricted; or
• (e) use the Service to harass or disturb wildlife, or to locate animals in breach of the rules in section 8.3.

11. Third-party services

Parts of the Service connect to services we do not control, including FareHarbor, Google, Stripe and Happywhale. Your use of them is also governed by their terms. We are not responsible for them, and a connection may stop working if the provider changes or withdraws it.

12. Confidentiality

Each party will keep the other's non-public business information confidential and use it only for this relationship, except where disclosure is required by law. This does not limit the license in section 4 or what the Privacy Policy allows.

13. Security

We use reasonable administrative, technical and physical safeguards for the data we hold, including access controls that keep each operator's records separate. If we become aware of unauthorized access to your Guest Data or Operator Data, we will notify you without unreasonable delay and give you the information you need to meet any notice obligation of your own.

14. Changes to these Terms

We may update these Terms. For a material change we will give at least 30 days' notice by email and in the workspace, and ask you to accept the new version there. If you do not accept, you may cancel before it takes effect and receive a pro-rated refund of any prepaid fees for the remaining period. A change to the license in section 4 applies only to Operator Data created after the change takes effect.

15. Suspension and termination

15.1 You may close your account at any time.

15.2 We may suspend access immediately if needed to protect the Service, other users, guests or wildlife, or for non-payment after notice. We will restore access once the issue is resolved.

15.3 We may terminate these Terms for a material breach not cured within 30 days of notice, or on 60 days' notice for any reason. If we terminate for any reason other than your breach, we will refund prepaid fees for the remaining period.

15.4 What happens at closure.

• (a) You have 30 days to export your Operator Data. We will provide an export on request during that time.
• (b) Within 30 days after that period, we delete Guest Data and Guest Photos, and remove your company's and Crew identities from the Operator Data we keep, as set out in section 4.5. Copies in backups are overwritten on the normal backup cycle, within 90 days.
• (c) Sections 4, 5.3, 7.2, 8, 10 through 12, 15.4, and 16 through 19 survive.

16. Warranties and disclaimers

Each party warrants that it has the authority to enter these Terms. We warrant that we will provide the Service with reasonable skill and care.

Except as stated in these Terms, the Service is provided "as is" and "as available". To the fullest extent allowed by law, we disclaim all other warranties, express or implied, including merchantability, fitness for a particular purpose and non-infringement. We do not warrant that the Service will be uninterrupted or error free, that any identification or sighting is accurate, or that any message or report will be delivered.

17. Limitation of liability

17.1 To the fullest extent allowed by law, neither party is liable for indirect, incidental, special, consequential or punitive damages, or for lost profits, revenue or goodwill.

17.2 To the fullest extent allowed by law, each party's total liability under these Terms is limited to the greater of the fees you paid in the 12 months before the claim and US $500.

17.3 These limits do not apply to your payment obligations, to either party's indemnity obligations, or to liability that cannot be limited by law, including for fraud, willful injury, or willful or negligent violation of law (California Civil Code section 1668).

18. Indemnity

18.1 By you. You will defend and indemnify Flukesend against third-party claims arising from your operation, your Guest Photos and content, your messages to guests, your or your Crew's breach of section 8.3 or 10, or your lack of rights to the data or photographs you upload.

18.2 By us. We will defend and indemnify you against third-party claims that the Service, as we provide it, infringes their intellectual property rights.

18.3 The indemnified party must give prompt notice, reasonable cooperation, and control of the defense to the indemnifying party.

19. General

19.1 Governing law and venue. California law governs these Terms, without regard to conflict of laws rules. The state and federal courts in Monterey County, California have exclusive jurisdiction.

19.2 Assignment. You may not assign these Terms without our consent. We may assign them to an affiliate or to a successor to the Service, including a company formed to operate it, by notice to you.

19.3 Notices. We send notices to the email address on your owner account. You send notices to slater@flukesend.com.

19.4 Electronic acceptance. Acceptance by click is a signature. We keep a record of the version accepted, who accepted it and when.

19.5 Force majeure. Neither party is liable for delay caused by events beyond its reasonable control, including outages of third-party infrastructure.

19.6 Entire agreement. These Terms, any written order, and the policies they refer to are the whole agreement and replace earlier understandings about the Service. If a written order signed by both parties conflicts with these Terms, the order controls.

19.7 Severability; no waiver. If a provision is unenforceable, the rest stays in force. Not enforcing a provision is not a waiver of it.

19.8 Independent parties. Nothing here creates a partnership, employment or agency relationship.

Schedule A: Service provider terms for Guest Data

This schedule applies when we process Guest Data for you. It is written to meet the contract requirements for service providers under the California Consumer Privacy Act as amended (Civil Code section 1798.100 and following, and its regulations), and applies whether or not either party is currently covered by that law.

• 1. Purpose. We process Guest Data only to provide the Service to you: delivering photos and trip reports, sending the review request and its reminders, matching bookings to trips, showing you your guests' engagement, and securing the Service.
• 2. No selling or sharing. We do not sell Guest Data or share it for cross-context behavioral advertising.
• 3. No other use. We do not retain, use or disclose Guest Data for any purpose other than the one in paragraph 1, or outside our direct business relationship with you, except as the law permits a service provider to.
• 4. No combining. We do not combine Guest Data with personal information we receive from others, except as the law permits a service provider to.
• 5. Compliance. We comply with the obligations that apply to us under that law and provide the same level of privacy protection it requires.
• 6. Your oversight. You may take reasonable and appropriate steps to ensure we use Guest Data consistently with your obligations, including requesting information about our safeguards, and to stop and remedy unauthorized use.
• 7. Notice. We will tell you if we determine we can no longer meet these obligations.
• 8. Subcontractors. We use the subprocessors listed in the Privacy Policy and bind them to written terms at least as protective as this schedule.
• 9. Requests. We will help you respond to guest requests to know, correct or delete their data.
• 10. Deletion. At closure we delete Guest Data as set out in section 15.4.