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AFFILIATE AGREEMENT & TERMS OF SERVICE
Welcome Aboard! This Affiliate Agreement and Terms of Service (“Affiliate TOS”) is hereby incorporated into and supplements the Terms of Service Agreement of Collaborative Boating, Inc. (hereinafter “BOATSETTER”). These Affiliate TOS are binding on you as an Affiliate. All terms with an initial capital letter that are used herein but not specifically defined in this Affiliate TOS shall have the respective meanings given to such terms in the Terms of Service Agreement. Please read and understand your obligations carefully and never hesitate to ask if you don’t understand something.
WHEREAS: BOATSETTER and Affiliate desire to establish a mutually beneficial relationship intended to enhance each party’s business interests while providing benefits to Owners and Renters of Boat(s) who come together through the BOATSETTER website platform located at www.BOATSETTER.com (the “Website”).
WHEREAS: BOATSETTER provides services through the Website that, among other things, match Owners, Captains and Renters for Charter(s) through the Service and Affiliate has customers who may be appropriate candidates for BOATSETTER Service(s).
WHEREAS: Affiliate desires to provide selected services on the BOATSETTER platform as set forth in the addendum attached hereto and incorporated herein (the “Addendum”) in return for which Affiliate will be paid a referral fee as more fully described in the Addendum (collectively, the “Affiliate Program”).
Association and Duties.
(a) The Whereas clauses are incorporated into this Affiliate TOS by reference.
(b) The relationship of Affiliate to BOATSETTER is that of an independent
Contractor. This arrangement will not establish and shall never be interpreted as establishing a partnership, joint venture, agency, employment, fiduciary relationship or franchise relationship between BOATSETTER and Affiliate.
(c) BOATSETTER may contract with and/or otherwise appoint other Affiliate(s) within any territory and without any limitation whatsoever.
(d) Affiliate will abide by all BOATSETTER guidelines, procedures and policies as contained in an area of the Website set up exclusively for Affiliate(s), as may be amended from time to time by BOATSETTER, at its sole discretion. Upon making any material amendments to the Affiliate TOS, BOATSETTER will provide written notice of same to the Affiliate.
(e) Affiliate does not have authority to accept any prospective Charter on behalf of BOATSETTER, and BOATSETTER is not required to accept any prospective Charter referred to it by Affiliate.
(f) Affiliate does not have any authority to bind BOATSETTER to any contract or obligation.
(g) Affiliate, in its reasonable discretion, may elect not to provide services to a Charter. In the event that Affiliate declines to provide services to a Charter Affiliate must immediately notify BOATSETTER of that decision so that BOATSETTER may provide alternative arrangements for the Charter.
(h) Read Carefully: Affiliate will not promote, nor suggest to its customers or others that they charter boats or make their boats available for charter through any online service other than BOATSETTER.com during the term of this Affiliate TOS and for a period of one hundred eighty (180) calendar days thereafter. The parties hereto agree that this paragraph shall be given the broadest reading possible and shall be enforced to the greatest extent possible.
(i) Notwithstanding paragraph “h” or anything else to the contrary in this Affiliate TOS, for Affiliates that own or operate their own boat(s) or any third party boat(s) (collectively, the “Affiliate Fleet”), Affiliate Fleet and charters of same through charter brokers or direct to consumer(s) will not be considered competitive with the Website, provided, however, Affiliate agrees they will not promote or suggest the Affiliate Fleet be listed with any on line service that competes with BOATSETTER and will list the Affiliate Fleet (subject to boat owner consent) on BOATSETTER.
(a) The Services and all BOATSETTER Content including but not limited to all intellectual property rights therein, are BOATSETTER’s exclusive property.
(b) Affiliate is hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the BOATSETTER Content for the purposes of introducing prospective users to and providing information about BOATSETTER in accordance with this Affiliate TOS and for providing the services set forth in this Affiliate TOS and Addendum. This license will terminate automatically upon termination of this Agreement. Affiliate is not required to pay to BOATSETTER any royalty or fee for use of any of BOATSETTER’s trade or service marks during the Term of this Affiliate TOS.
(c) Affiliate’s logos, patents, trademarks, service marks, copyrights, photographs, and all intellectual property rights therein or relating to Affiliates or related entities, are Affiliate’s exclusive property.
(a) BOATSETTER will indemnify Affiliate against any loss, liability or expense, including reasonable attorneys’ fees for any loss, liability or expense directly incurred by Affiliate as a result of a grossly negligent act, omission or material violation of law solely by BOATSETTER.
(b) Affiliate will indemnify, defend and hold BOATSETTER harmless against any loss, liability or expense, including reasonable attorneys’ fees incurred by BOATSETTER arising out of, or relating to, Affiliate’s breach of this Affiliate TOS, and / or Affiliate’s negligence or omission, or violation of law by Affiliate in connection with Affiliate’s performance of this Affiliate TOS.
Representations and Warranties.
(a) Each party represents and warrants to the other party that:
(i) Such party has the full corporate right, power, and authority to enter into this Affiliate TOS and to perform the acts required of it hereunder;
(ii) The execution of this Affiliate TOS by such party and the performance by such party of its obligations and duties hereunder does not and will not violate any agreement to which such party is a party or by which it is otherwise bound;
(iii) Such party has obtained all permits, licenses, and other governmental authorizations and approvals required for its performance under this Affiliate TOS;
(iv) The services to be rendered by such party under this Affiliate TOS do not infringe or violate any patent, copyright, trade secret, trademark, or other proprietary right of any third party;
(v) Neither BOATSETTER nor Affiliate will be liable to the other for any indirect, special, punitive or consequential damages (including, without limitation, lost profits or lost data) arising out of this Affiliate TOS;
(vi) BOATSETTER’s entire liability arising from this Affiliate TOS whether in contract or tort shall never exceed the amounts payable to Affiliate hereunder; and
(vii) Such party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter hereof which are not expressly provided for in this Affiliate TOS;
Each party specifically disclaims any representation or warranty regarding the amount of sales or referral fees either party hereto may generate during the term, and any economic or other benefit that the other party might obtain through its participation in this Affiliate TOS.
(a) This Affiliate TOS will remain in effect:
(i) For Boatsetter Pro / Independent / and Manufacturer – Dealer Affiliates: For one (1) year from the date of execution of this Affiliate TOS. In addition, BOATSETTER reserves the right to renew for an additional one (1) year term unless Affiliate provides written notice of its desire not to renew the Affiliate TOS at least sixty (60) days prior to the scheduled renewal date.
(ii) For Preferred Marina Affiliates: For five (5) years from the date of execution of this Affiliate TOS and the initial term will renew for additional one year terms automatically unless either party provides notice of non-renewal to the other at least sixty (60) days prior to the scheduled renewal date.
(c) BOATSETTER has the right to terminate this Affiliate TOS at any time, if the Affiliate does not provide services in accordance with this Affiliate TOS as determined by BOATSETTER in its sole discretion.
(d) During the Term, upon termination, and thereafter of this Affiliate TOS, the Affiliate will keep confidential any and all BOATSETTER Content and / or User information obtained during the term of the Affiliate TOS, including but not limited to sales or marketing material and User identities, and will promptly return to BOATSETTER all information and documents, whether stored electronically or on paper, containing such content or information.
(e) After termination of this Agreement, BOATSETTER may continue to provide Service(s) to any User and retain all of the fees paid by such User to BOATSETTER.
This Affiliate TOS, and any rights and licenses granted hereunder, may not be transferred or assigned by Affiliate, but may be assigned by BOATSETTER without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
Governing Law. This Affiliate TOS shall be governed, construed and interpreted in accordance with the internal substantive laws of the State of Florida, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Affiliate agrees to submit to the personal jurisdiction of a state court located in Broward County, Florida or the United States District Court for the Southern District of Florida, for any actions for which BOATSETTER retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of BOATSETTER’s copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as further described in the Dispute Resolution provision below.
Dispute Resolution. All claims and disputes arising under or relating to this Affiliate TOS are to be resolved by binding arbitration in accord with Arbitration Resolution Services (“ARS”) with any hearings to be held at a mutually agreeable location in Broward County, Florida. The parties expressly agree to abide by any and all rules of ARS then in effect as found on their web site at www.arbresolutions.com. In the event that a party fails to pay any award, the award may be converted to a judgment in a Court of competent jurisdiction.
Class Action Waiver. This Affiliate TOS requires that the exclusive resolution of disputes is through arbitration instead of through any individual legal or class action. Even if the applicable law provides otherwise, User agrees that any legal action shall be brought individually and not as a member or part of any class action and User waives any right to participate in such class action. In any arbitration, the arbitrator(s) have no authority to arbitrate claims on a class action basis.
Entire Agreement/Severability. This Affiliate TOS, together with all amendments, all documents referenced in this Affiliate TOS, and any other legal notices and agreements published by BOATSETTER, shall constitute the entire agreement between Affiliate and BOATSETTER. If a court of competent jurisdiction or a properly convened arbitration panel deems any provision of this Affiliate TOS invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Affiliate TOS, which shall remain in full force and effect.
No Waiver. No waiver of any term of this Affiliate TOS shall be deemed a further or continuing waiver of such term or any other term, and BOATSETTER’s failure to assert any right or provision under this Affiliate TOS shall not constitute a waiver of such right or provision.
All details regarding the terms of this Affiliate TOS, including the Affiliate TOS itself are confidential and shall not be disclosed unless required by subpoena, court order, for tax purposes or due to other legal process.
This Affiliate TOS shall always be construed as if all parties hereto contributed to its composition and there shall be no presumption otherwise.
All notices given by either party hereto to the other party shall be in writing. All notices shall be deemed to have been properly given if sent by overnight mail addressed to the parties at the addresses listed below their signature on this Affiliate TOS, or to such other address as either party may from time to time designate by written notice given as herein required.
To the extent there is any conflict between this Affiliate TOS and the Addendum, the Addendum will govern. Furthermore, to the extent that there is any conflict between this Affiliate TOS, the Addendum and the Terms of Service, the Addendum will govern.
(a) This Affiliate TOS may be amended only by a written amendment signed by BOATSETTER and the Affiliate.
This Affiliate TOS may be signed in counterparts, which together will constitute a single instrument. Signatures transmitted by electronic means will be deemed original signatures.
IN WITNESS WHEREOF, the parties have executed this Affiliate TOS as of the date indicated below.
BOATSETTER PRO AFFILIATE (“BP”) ADDENDUM
All terms with an initial capital letter that are used herein but not specifically defined in this Addendum shall have the respective meanings given to such terms in the Affiliate TOS.
SERVICES PROVIDED BY BP: BOATSETTER will collect and pay commissions to BP for sales and services provided to Users by BP as outlined in this Addendum. BOATSETTER will pay the commissions due to BP within thirty (30) days of the end of the calendar month in which BOATSETTER receives payment for BP’s services. Check or ACH will be paid in accordance with the Affiliate TOS to the name and address associated with the BP’s Boatsetter Pro Portal (defined below). A referral commission shall be paid to the BP for each completed charter referral (“Charter Referral”). BOATSETTER shall have sole discretion in calculating the amount of referral commission due.
Charter Referral: Affiliate will use its best efforts in the regular conduct of its business to solicit, provide information to, and refer those individuals or entities to BOATSETTER that Affiliate believes are appropriate candidates to Charter a Boat through the Service. Affiliate will be entitled to a referral commission from BOATSETTER of 10% of the Boatsetter Charter amount for each completed Charter that was paid for on the BOATSETTER.com website where the Renter booked the trip using the BP’s Boathub Portal.
III. SERVICES PROVIDED BY BOATSETTER TO BP: BOATSETTER will provide the following services to BP:
Marketing & Trademark Materials: BOATSETTER will provide marketing materials for BP’s use. BP will use only marketing materials provided or approved by BOATSETTER when promoting the BOATSETTER Services.
Individualized Booking Portal: BOATSETTER will also provide BP with an individualized booking portal with a unique URL (“Boatsetter Pro Portal”) for BP to provide to prospective Users who desire to Charter Boats. BP and Renter must use the BP’s Boatsetter Portal to complete a Booking for BP to receive the referral commission.