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Last revision: September 13, 2015
Whether you’re a boat owner or someone who wants to charter a boat, READ THIS AGREEMENT CAREFULLY! This Agreement contains important information regarding your legal rights, remedies and responsibilities.
READ THIS AGREEMENT CAREFULLY BECAUSE IT INCLUDES LIABILITY LIMITATIONS AND EXCLUSIONS AS WELL AS AN ARBITRATION TERM AND TERMS REGARDING WHERE SUIT MUST BE BROUGHT AND WHAT LAW APPLIES.
BY USING THE BOATSETTER SERVICE YOU ARE AGREEING TO THIS AGREEMENT’S TERMS AND CONDITIONS AND YOU ARE ALSO AGREEING TO BE BOUND BY AND TO ACT IN ACCORDANCE WITH OTHER AGREEMENTS, DOCUMENTS, POLICIES AND RULES.
ASK QUESTIONS IF YOU DON’T UNDERSTAND!
THE BOTTOM LINE IS IF YOU DON’T AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT, YOU CAN’T USE OR ACCESS THE SERVICES WE PROVIDE!
Welcome to BOATSETTER.COM, a peer-to-peer boat charter marketplace web site and online service provided by Collaborative Boating, Inc. (“BOATSETTER” “we,” or “us”).
Important! BOATSETTER does NOT offer boat charter or rental services, instead BOATSETTER offers a service allowing vessel Owners and those interested in chartering a vessel to transact directly with each other. While BOATSETTER helps facilitate successful transactions and the resolution of disputes, we do NOT guarantee the quality, safety, truth or accuracy of Charters, User Content, insurance coverage or other services or transactions we make available.
We reserve the right to amend this Agreement at any time by notifying you as provided in this Agreement, provided that no notice shall be required for non-substantive changes to the Agreement. If we substantively amend this Agreement, you may reject the changes by terminating your account. Your continued use of the Service after any such change constitutes your acceptance of the revised Agreement. If you do not agree to any of these terms or any future amendments, do not use or access (or continue to access) the Service. This Agreement applies to all visitors, users and others who access the Service (collectively, “Users”).
READ CAREFULLY MAKING CERTAIN YOU UNDERSTAND EACH PROVISION.
YOU UNDERSTAND AND AGREE THAT BOATSETTER IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN RENTERS, OWNERS OR BOATSETTER APPROVED AFFILIATES, INCLUDING, BUT NOT LIMITED TO, MARINAS, MECHANICS, TECHNICIANS, YACHT MANAGEMENT SERVICES, CAPTAINS OR OTHER SERVICE PROVIDERS ON BOATSETTER (COLLECTIVELY, “AFFILIATES”), NOR IS BOATSETTER A TRANSPORTATION SERVICE, AGENT, BOAT BROKER OR INSURER.
BOATSETTER HAS NO CONTROL OVER THE CONDUCT OF RENTERS, OWNERS OR AFFILIATES OR OTHER USERS OF THE SERVICE AND DISCLAIMS ALL LIABILITY IN THIS REGARD.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Remember! Chartering a Boat is different than a car rental. Make sure you understand these differences and, if you don’t, ASK!
USE OF OUR SERVICE
- Agreement. The herein Terms of Service.
- Bareboat Charter. A written agreement whereby the Boat Owner gives possession, control and use of the Boat to Renter and Renter hires its own captain and crew, supplies its own provisions and otherwise is responsible for the Boat’s operation during the Charter Period.
- Boat. The vessel to be chartered from a Boat Owner using the Service as identified in the Charter Confirmation. The term “Boat” includes the boat and all of its machinery, electronics, equipment, rigging, gear, sails, contents and appurtenances.
- BOATSETTER. A peer-to-peer boat charter marketplace website and online service provided by Collaborative Boating, Inc. which brings vessel owners and those interested in chartering a vessel together. The term “BOATSETTER” includes collectively its affiliates, agents, directors, employees, insurers, underwriters, suppliers and its licensors.
- Charter. Each transaction in which a Renter charters a boat from an Owner whether with or without a captain or other professional operator via the Service. All Charter’s performed through BOATSETTER are Bareboat Charters.
- Captain. The person contracted by Renter to pilot the Boat during the Charter Term. The Captain is an agent of Renter and Renter is responsible for any and all actions or inactions of the Captain. BOATSETTER never approves or endorses any Captain.
- Charter Period. The duration of time between Delivery and Redelivery as specified in the Charter Confirmation during which Renter has sole possession, control and use of the Boat.
- Eligibility Requirements. Conditions a User must fulfill in order to use the Service or any aspect thereof.
- Listing. A term for any Boat identified on the BOATSETTER website as being available for Charter.
- Boat Owner. The person or entity that has registered on the BOATSETTER website and has title to the Boat or is otherwise the registered and/or documented owner of the Boat.
- Renter. The person or entity that has chartered the Boat through the BOATSETTER website.
- Service. Our web site, web widgets, feeds, mobile device software applications, applications for third-party web sites and services, and any other mobile or online services and/or applications owned, controlled or offered by BOATSETTER
- User. All visitors and others who access the Service and are assigned a User account.
- User Content. Feedback, comments, questions, and other content or information posted, displayed or otherwise made available by a User on the Service.
- BAREBOAT CHARTER AGREEMENT
When you use the Service to transact a Charter, the Service will present you with a page confirming the details of the Charter (the “Charter Confirmation”). By clicking “Accept (or any other means of acceptance presented by the Service), you agree you are making yourself a party to and are bound by the terms of the Bareboat Charter Agreement which governs the rights and obligations of Owner and Renter with respect to the charter of the Boat. Each Bareboat Charter Agreement and the Charter Confirmation are incorporated and made part of this Agreement by reference.
- OTHER AGREEMENTS ARE INCORPORATED HEREIN
(a) In using BOATSETTER’s Service, you agree that you’ve read, understand and will be bound by and act in accordance with all of the agreements, documents, policies and rules relating to the Service and which are incorporated herein as if they were set out in full including, but not limited to:
- Boat Eligibility Requirements
ii. Renter Eligibility Requirements
iv. Fee Schedule
v. Insurance Summary
vi. Charter Confirmation
vii. Boat Captain Service Agreement (Existing between Renter and Captain)
viii. Bareboat Charter Agreement (Existing between Owner and Renter)
ix. Check-In/Check-Out Reports
By using the Service, you agree you are making yourself a party to and will be bound by the terms of the various agreements identified herein.
(b) The Service as well as other documents incorporated herein may contain different terms and conditions or may require the User to agree with and/or accept additional and/or different terms and conditions. If a conflict arises between the terms of this Agreement and the terms and conditions posted for a specific area of the Service or contained within a document incorporated herein, the latter terms and conditions will take precedence with respect to your use of or access to that aspect of the Service.
- This Service is intended solely for persons who are eighteen (18) years or older, and any registration, use or access to the Service by anyone under 18 is strictly prohibited and in violation of this Agreement.
- The minimum age to Charter or operate a boat is twenty five (25) years old.
- The Service is not available to any Users previously removed from the Service by BOATSETTER, unless BOATSETTER has given you written notice of reinstatement.
- All Users must satisfy the Eligibility Requirements and must provide all requested documentation and information throughout the use of the Service. Renters must also satisfy any requirements imposed by the Boat Owner.
- You acknowledge and agree that the Eligibility Requirements may change at any time and for any reason.
- BOATSETTER ACCOUNTS
- No matter whether you’re a Boat Owner seeking to list your boat for Charter or a Renter seeking to Charter a listed Boat or a marine vendor interested in offering professional services on BOATSETTER, you will need to apply for a “User Account” with BOATSETTER.
- By applying for a User account, you give us permission to disclose the information you provide on your application to third parties for verification purposes, and to obtain additional information about you. BOATSETTER may accept or reject User account applications in our sole discretion for any reason. If you are accepted for a User account, you acknowledge and agree to abide by the Eligibility Requirements which are applicable to your account and which are incorporated herein.
- Users of the Service with a User account are collectively referred to in this Agreement as “Users”. Your User account gives you access to the Services and functionality that we may establish and maintain from time to time and in our sole discretion.
- Your User account is for your personal use only. You may not create a User account on behalf of a business or entity unless the Boat is owned by a business entity. If the Boat is owned by a business entity you warrant and represent to BOATSETTER (i) that you have authority to manage the Boat on behalf of the entity, (ii) that the business entity specifically authorizes the Boat to be chartered, (iii) and that said entity is active, in good standing and authorized to do business in the state in which the Boat is to be chartered.
- You may not use another User’s account, permit anyone else to use your User account, or assign or otherwise transfer your User account to any other person or entity. When applying for and creating your account, you must provide accurate and complete information, and keep such information updated and accurate throughout the term of this Agreement. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify BOATSETTER immediately of any breach of security or unauthorized use of your account. BOATSETTER will not be liable for any losses caused by any unauthorized use of your account.
- You may control your User profile and how you interact with the Service by changing the options in your Settings page. By providing BOATSETTER your email address, you consent to our using the email address to send you Service-related email, including any notices required by law, in lieu of communication by postal mail. By providing BOATSETTER your cell phone number, you consent to our using the phone number to send you Service-related SMS messages. You may not opt out of Service-related emails or SMS messages. We may also use your email address and/or cell phone number to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such messages, you may opt out or change your preferences in your Settings page. Opting out may prevent you from receiving messages regarding updates, improvements, or offers, however, will not prevent BOATSETTER from sending you messages from other Users with regards to Charters.
- THE SERVICE.
- The Service can be used to facilitate the listing and booking of Boats for Bareboat Charter. The Boats available for Charter are included in Listings on the Service by Boat Owners. You may view Listings as an unregistered visitor to the Services; however, if you wish to book a Boat or create a Listing, you must first register to create a User Account (defined above).
- As stated above, BOATSETTER makes available a platform or marketplace with related technology for Renters, Owners, and BOATSETTER Affiliates to meet online and arrange for bookings of Boats to be Bareboat Chartered. BOATSETTER is NOT the owner, operator, broker, manager, repairer, insurer, Renter, licensor of any of the Boats and BOATSETTER possesses no legal interest in any of the boats listed on its website. BOATSETTER’s responsibilities are strictly limited to: (i) facilitating the availability of the Service and (ii) serving in the limited capacity as pay agent of each Owner and Affiliate for the purpose of accepting payments from Renter on behalf of the Owner and Affiliate.
- PLEASE NOTE THAT, AS STATED ABOVE, THE SERVICES ARE INTENDED TO BE USED TO FACILITATE THE BOOKING OF BOATS. BOATSETTER CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY LISTINGS OR OFFERINGS FOR SERVICE AND THE CONDITION, LEGALITY, SUITABILITY, INSURABILITY OR SEAWORTHINESS OF ANY BOATS. BOATSETTER IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS AND BOATS. ACCORDINGLY, ANY BOOKINGS AND CHARTERS ARE MADE AT THE RENTER’S AND BOAT OWNER’S OWN RISK WHETHER OR NOT AFFILIATES ARE INVOLVED. IT IS ALSO YOUR RESPONSIBILITY TO MAKE CERTAIN YOU HAVE ALL NECESSARY INSURANCE COVERAGE!
- ACCOUNT REGISTRATION.
- In order to access certain features of the Service, and to book a Boat or create a Listing, you must register to create a User Account and become a User. You may register to join the Service directly via the Service or as described in this section.
- We will create your User Account and your User Account profile page for your use of the Service based upon the personal information you provide to us or that we obtain via a TPA as described above. You may not have more than one (1) active User Account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete.
- BOATSETTER reserves the right to suspend or terminate your User Account and your access to the Service if you create more than one (1) User Account or if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your User Account, whether or not you have authorized such activities or actions. You will immediately notify BOATSETTER of any unauthorized use of your User Account.
- In order to promote safety and a great experience BOATSETTER makes available a listing of available captains which can be hired by the Renter whether required by the Renter or Owner. PLEASE NOTE THAT, AS STATED ABOVE, THE BOATSETTER SERVICE IS INTENDED TO BE USED TO FACILITATE THE BOOKING OF BOATS. BOATSETTER CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY LISTINGS OR OFFERINGS FOR SERVICE AND THE CONDITION, LEGALITY, SUITABILITY, INSURABILITY OR SEAWORTHINESS OF ANY BOATS, CAPTAINS OR OTHER AFFILIATES OR SERVICE PROVIDERS. BOATSETTER IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS AND BOATS AS WELL AS ANY INFORMATION PUBLISHED BY AFFILIATES. ACCORDINGLY, ANY BOOKINGS AND ANY CHARTERS FLOWING THEREFROM ARE MADE AT THE RENTER’S AND OWNER’S OWN RISK.
- Captains are hired by and act on behalf Renter and that hiring is subject to the terms and conditions of the Boat Captain Service Agreement.
- NO ENDORSEMENT.
- BOATSETTER does not endorse any Users, Boats, Affiliates. In addition, although this Agreement requires Users provide accurate information, we do not attempt to confirm, and do not confirm, any User’s purported identity or other information provided by such User.
- You are responsible for determining the identity and suitability of others whom you contact via the Service. Except as provided by this Agreement, and among other limitations, BOATSETTER will NOT be responsible for any damage or harm resulting from your interactions with other Users or Affiliates.
- BOOKINGS AND FINANCIAL TERMS.
(a) If you are an Owner and a booking is requested for your Boat via the Service, you may be required to either confirm or reject the booking within 24 hours of when the booking is requested (as determined by User in its sole discretion) or the booking request may be automatically cancelled.
(b) When a booking is requested via the Service, BOATSETTER will share with Owner (i) the first and last name of the Renter who has requested the booking, and, (ii) a link to the Renter’s User Account profile page, so that Owner can view such information before confirming or rejecting the booking.
(c) If Owner is unable to confirm or decides to reject a booking of a Boat within such 24 hour period, any amounts collected by BOATSETTER for the requested booking may be refunded to the applicable Renter’s credit card or other payment method and any pre-authorization of such credit card or other payment method will be released.
(e) When Owner confirms a booking requested by a Renter, BOATSETTER will send Owner an email, text message and/or message via the Service confirming such booking, depending on the selections Owner makes via the Service.
Designated Authorized Agent. Owner may designate an agent (a “Designated Agent”) to fulfill his or her responsibilities under the BOATSETTER Service, provided that: BOATSETTER pre-approves the Designated Agent in writing; and the Designated Agent acknowledges in writing that he or she has fully read and understood this Agreement and the Bareboat Charter Agreement, and agrees to be bound by both, and that he or she will be responsible for inspection, safety briefing, orientation and competence assessment of the Renter. Owner assumes all liability and responsibility for the acts of his or her Designated Agent.
- APPOINTMENT OF BOATSETTER IN LIMITED CAPACITY AS PAYMENT AGENT.
(a) Each Owner hereby appoints BOATSETTER as the Owner’s limited agent solely for the purpose of collecting payments made by Renters to Owners. Each Owner agrees that payment of Fees made by a Renter to BOATSETTER shall be considered the same as a payment made directly to the Owner and the Owner will make the Boat available to Renter in the agreed upon manner as if the Owner has received the Fees. Each Owner agrees that BOATSETTER may, in accordance with the cancellation policy selected by the Owner and reflected in the relevant Listing, (i) permit the Renter to cancel the booking and (ii) refund to the Renter that portion of the Fees specified in the applicable cancellation policy. In accepting appointment as the limited authorized payment agent of the Owner, BOATSETTER assumes no liability whatsoever for any acts or omissions of the Owner.
(b) To the maximum extent permitted by the law, Owner shall indemnify, defend and hold BOATSETTER harmless from and against any and all claims, demands, expenses (including attorneys’ fees and costs) and liabilities of any and every nature which BOATSETTER may sustain or incur or which may be asserted against BOATSETTER in its limited capacity as payment agent.
- APPOINTMENT OF BOATSETTER IN LIMITED CAPACITY AS PAYMENT AGENT FOR BOATSETTER AFFILIATES.
Registered BOATSETTER Affiliates appoint BOATSETTER as the Affiliate’s limited agent solely for the purpose of collecting payments made by Owners on behalf of the Affiliate for products and services provided by the Affiliate to a User. Each Affiliate agrees that payment of Fees made by an Owner or Renter to BOATSETTER shall be considered the same as a payment made directly to the Affiliate. In accepting appointment as the limited authorized payment agent of the Affiliate, BOATSETTER assumes no liability whatsoever for any acts or omissions of the Affiliate.
To the maximum extent permitted by the law, Affiliate shall indemnify, defend and hold BOATSETTER harmless from and against any and all claims, demands, expenses (including attorneys’ fees and costs) and liabilities of any and every nature which BOATSETTER may sustain or incur or which may be asserted against BOATSETTER in its limited capacity as payment agent.
- SECURITY DEPOSITS.
BOATSETTER will, in its limited capacity as the payment agent of the Owner, use commercially reasonable efforts to obtain either a pre-authorization of the Renter’s credit card or other payment method or a charge against the credit card or other payment method in the amount of the full Charter Fee plus Security Deposit at the time the booking is confirmed prior to the Renter’s check-in at the applicable Owner’s Boat. BOATSETTER will use commercially reasonable efforts to address Owners’ requests and claims related to Security Deposits, but BOATSETTER is not responsible for administering or accepting any claims by Owners related to Security Deposits, and disclaims any and all liability in this regard.
- SERVICE RULES.
- Users agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any form via any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots, “spiders, “offline readers, etc., to access the Service in a manner that sends more request messages to the BOATSETTER servers than a human can reasonably produce in the same period of time by using a conventional online web browser except that BOATSETTER grants the operators of public search engines revocable permission to use spiders to copy materials from BOATSETTER.com 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; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
- BOATSETTER may permanently or temporarily terminate, suspend, or otherwise refuse to permit User access to the Service without notice and liability for any reason, including if in BOATSETTER’s sole determination User violates any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, User continues to be bound by this Agreement. All aspects of the Service are subject to change or elimination at BOATSETTER’s sole discretion. BOATSETTER reserves the right to interrupt the Service with or without prior notice for any reason or no reason. BOATSETTER is not liable to Users for any interruption of the Service, delay or failure to perform.
- Policies and Procedures; Charter Confirmations; Feedback
- If you are an Owner, you agree to the Owner Policies and Procedures. By accessing or using the Service, you signify you have read, understood and agreed to be bound by the Owner Policies and Procedures.
- If you are a Renter, you agree to the Renter Policies and Procedures. By accessing or using the Service, you signify you have read, understood and agree to be bound by the Renter Policies and Procedures.
iii. When you use the Service to transact a Charter, the Service will present you with a page confirming the details of the Charter (the “Charter Confirmation”). By clicking “Accept” (or any other means of acceptance presented by the Service), you affirm your agreement to be bound by the terms of the Bareboat Charter Agreement which governs the rights and obligations of Owner and Renter with respect to the Boat Charter and the Charter Confirmation becomes part of this Agreement.
- Renters, Owners and Affiliates are required to submit feedback to the Service following the completion of each Charter. We may block you from any further use of the Service until you submit such feedback.
- Some areas of the Service may allow Users to post feedback, comments, questions, and other content or information (any such materials a User submits, posts, displays or otherwise makes available on the Service is referred to as “User Content”). You retain ownership of your User Content. You are solely responsible for the User Content that you upload, publish, display, link to or otherwise make available on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand that BOATSETTER does not guarantee any confidentiality with respect to any User Content.
- You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below), rights of publicity and privacy.
vii. BOATSETTER reserves the right, but is not obligated, to reject and/or remove any User Content that BOATSETTER believes, in its sole discretion, violates these provisions. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
viii. For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
- BOATSETTER takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts or sends over the Service. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that you send, upload, download, stream, post, transmit, display, or otherwise make available or access through your use the Service, is solely your responsibility. BOATSETTER is not responsible for any public display or misuse of your User Content. You understand and acknowledge that you may be exposed to User Content that is inaccurate, offensive, indecent, objectionable, or inappropriate for children, and you agree that BOATSETTER shall not be liable for any damages you allege to incur as a result of such User Content.
- BOATSETTER does not endorse any Users, any User Content or the charter of any Boat. You are solely responsible for your interactions with other BOATSETTER Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. BOATSETTER shall have no liability for your interactions with other Users, or for any Users’ action or inaction, with respect to Charters or the Service. YOU ACKNOWLEDGE, UNDERSTAND AND AGREE THAT BOATSETTER DOES NOT OFFER BOAT CHARTER OR BOAT RENTAL SERVICES. Instead, the Service allows Renters and Owners to transact Charters directly with each other. While we may help facilitate successful transactions and the resolution of disputes, we do not guarantee the quality, safety, truth or accuracy of Charters, User Content, or other services or transactions available via the Service.
- By using the Service, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Users or other third parties will be limited to a particular User or third party that cause you harm and you agree not to attempt to impose liability on, or seek any legal remedy from BOATSETTER with respect to such actions or omissions. If you have a dispute with one or more Users, you release us (and our officers, directors, employees, agents, subsidiaries, insurers and underwriters) from any and all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes or your use of the Services. If you are a California resident, you waive California Civil Code 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
PLEASE NOTE THAT, AS STATED ABOVE, THE SERVICE IS INTENDED TO BE USED TO FACILITATE BOAT CHARTERS. BOATSETTER CANNOT AND DOES NOT CONTROL THE USER CONTENT CONTAINED IN ANY CHARTER, DOES NOT CONTROL THE CONDITIONS OF THE BOATS PROVIDED THROUGH THE SERVICE, AND DOES NOT CONTROL THE BEHAVIOR OF ANY USER OR THE ACTIONS OF ANY USER. BOATSETTER IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL CHARTERS AND USER CONTENT. ACCORDINGLY, ANY CHARTERS MADE BY A USER, RENTER AND/OR OWNER IS MADE AT THE USER’S, RENTER’S AND/OR OWNER’S OWN RISK. IT IS ALSO YOUR RESPONSIBILITY TO MAKE CERTAIN YOU HAVE INSURANCE COVERAGE!
- LICENSE GRANT.
- By posting any User Content on the Service, you expressly grant, and you represent and warrant that you have a right to grant, to BOATSETTER a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with BOATSETTER’s (and its successors and affiliates) business. You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under this Agreement.
- END USER LICENSES.
(a) BOATSETTER Service. Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable, license to use the Service for your personal, noncommercial use only. BOATSETTER reserves all rights not expressly granted herein in the Service and the BOATSETTER Content (as defined below). BOATSETTER may terminate this license at any time for any reason or no reason.
(b) BOATSETTER Software. To use the BOATSETTER Software you must have a mobile device that is compatible with the BOATSETTER Service. BOATSETTER does not warrant that the BOATSETTER Software and/or BOATSETTER Service will be compatible with your mobile device.
(c) License Grant. BOATSETTER hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the BOATSETTER Software for one BOATSETTER User account on one mobile device owned or leased solely by you, for your personal use.
(d) Restrictions. You may not: (i) modify, disassemble, decompile or reverse engineer the BOATSETTER Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the BOATSETTER Software to any third party or use the BOATSETTER Software to provide time sharing or similar services for any third party; (iii) make any copies of the BOATSETTER Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the BOATSETTER Software, features that prevent or restrict use or copying of any content accessible through the BOATSETTER Software, or features that enforce limitations on use of the BOATSETTER Software; or (v) delete the copyright and other proprietary rights notices on the BOATSETTER Software.
(e) Software Upgrades. You acknowledge that BOATSETTER may from time to time issue upgraded versions of the BOATSETTER Software, and may automatically electronically upgrade the version of the BOATSETTER Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades.
(f) Third-Party Code. Any third-party code that may be incorporated in the BOATSETTER Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code.
(g) Rights Reserved. The foregoing license grant is not a sale of the BOATSETTER Software or any copy thereof, and BOATSETTER or its third party partners or suppliers retain all right, title, and interest in the BOATSETTER Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. BOATSETTER reserves all rights not expressly granted under this Agreement.
(h) Government End Users. If the BOATSETTER Software is being acquired on behalf of the United States Government, then the following provision applies. Use, duplication, or disclosure of the BOATSETTER Software by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable.
(i) Export Control. The BOATSETTER Software originates in the United States, and is subject to United States export laws and regulations. The BOATSETTER Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the BOATSETTER Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the BOATSETTER Software and the BOATSETTER Service.
- OUR PROPRIETARY RIGHTS.
- Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content (the “BOATSETTER Content”), and all Intellectual Property Rights related thereto, are the exclusive property of BOATSETTER and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Service. Use of the BOATSETTER Content or materials on the Service for any purpose not expressly permitted by this Agreement is strictly prohibited.
b. You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place BOATSETTER under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, BOATSETTER does not waive any rights to use similar or related ideas previously known to BOATSETTER, or developed by its employees, or obtained from sources other than you.
- FEES; BILLING; PAYMENTS.
- Fee Schedule and Billing Policies. You agree to the fees and charges, terms of sale, payment and billing policies applicable to your use of the Service as stated in our Fee Schedule, a copy of which is incorporated herein as if set out in full. BOATSETTER may add new services for additional fees and charges, or amend fees and charges for existing services, at any time in its sole discretion. All fees and charges for your use of the Service are non-refundable, except as may be expressly stated in the Fee Schedule.
- Payments. If you are an Owner, you may set the Charter Fee for your Boat as permitted by the Service. BOATSETTER will process the Charter Fee on your behalf, which means processing the Renter’s credit card, retaining a commission as set forth in our Fee Schedule, distributing funds to third parties such as, but not limited to Affiliates and remitting such funds to you as provided in this section. BOATSETTER will remit payments due to you hereunder no later than thirty (30) days after the end of each calendar month in which the applicable Fees are received for completed Charters. Payment shall be in the form you select when you register for the Service, or subsequently updated as permitted by the Service. BOATSETTER reserves the right to withhold payment or charge back to your account any amounts otherwise due to us under this Agreement, or any amounts due as a result of a breach of this Agreement by you, pending BOATSETTER’s reasonable investigation of such breach.
- To ensure proper payment, you are solely responsible for providing and maintaining accurate contact and payment information associated with your account, which includes without limitation applicable tax information. If we believe that we are obligated to obtain tax information and you do not provide this information to us after we have requested it, we may withhold your payments until you provide this information or otherwise satisfy us that you are not a person or entity from whom we are required to obtain tax information.
- Any bank fees related to returned or cancelled checks due to a contact or payment information error or omission may be deducted from the newly issued payment. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your participation in the Service. If you dispute any payment made hereunder, you must notify BOATSETTER in writing within thirty (30) days of any such payment; failure to so notify BOATSETTER shall result in the waiver by you of any claim relating to any such disputed payment. Payment shall be calculated solely based on records maintained by BOATSETTER. No other measurements or statistics of any kind shall be accepted by BOATSETTER or have any effect under this Agreement.
- IRS Reporting Regulations on Third-Party Payment Transactions. Due to Internal Revenue (“IRS”) regulations, U.S. third-party payment networks, including BOATSETTER, are required to file Form 1099-K for U.S. taxpayer sellers who meet the following thresholds in a calendar year:
- More than $20,000 in unadjusted gross sales, and
ii. More than 200 transactions.
- IRS regulations require non-U.S. taxpayers to provide Form W-8BEN to BOATSETTER in order to be exempt from U.S. tax reporting requirements.
- As a result of these and other upcoming regulations, the following sellers are required by BOATSETTER to provide taxpayer identification information to BOATSETTER by completing a W-9 or a W-8BEN:
- All Professional sellers
ii. Individual sellers that exceed 20 transactions in a calendar year, regardless
of sales volume
iii. Individual sellers that exceed $20,000 in a calendar year, regardless of
the number of sales
(d) Important Notice. Information in this document does not constitute tax, legal, or other professional advice and must not be used as such. To find out how this new legislation will affect you or your business, or if you have other questions, please contact your tax, legal, or other professional adviser. Remember – Each User is responsible for complying with their tax obligations!
We have implemented commercially reasonable technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
- DMCA NOTICE.
- Since we respect artist and content owner rights, it is BOATSETTER’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
- If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify BOATSETTER’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work that you claim has been infringed;
iii. Identification of the material that is claimed to be infringing and where it is located on the Service;
- Information reasonably sufficient to permit BOATSETTER to contact you, such as your address, telephone number, and, e-mail address;
- A statement that you have a good faith belief that use of the material in the manner contemplated of is not authorized by the copyright owner, its agent, or law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice – BOATSETTER
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS FEES.
(c) Please note that this procedure is exclusively for notifying BOATSETTER and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with BOATSETTER’s rights and obligations under the DMCA, including 17 U.S.C. 512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
(d) In accordance with the DMCA and other applicable law, BOATSETTER has adopted a policy of terminating, in appropriate circumstances and at BOATSETTER’s sole discretion, Users who are deemed to be repeat infringers. BOATSETTER may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
- ADDITIONAL USER REPRESENTATIONS AND WARRANTIES.
In addition to the other representations and warranties in this Agreement, you affirm, represent and warrant that:
(a) You are at least 25 years of age and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement; you are a United States resident; and you have not previously been removed from the Service unless you have a currently valid notice of reinstatement from BOATSETTER.
(b) If you are an Owner, any Boat you offer for Charter hereunder is in sound, safe and seaworthy condition and free of any known faults or defects that would affect its safe operation under normal use and that the Boat conforms to the Eligibility Requirements as stated in the Boat Eligibility Requirements, incorporated herein.
(c) If you are an Owner, you carry a minimum of $300,000 liability insurance on your Boat.
(d) If you are an Owner, you are and will remain in compliance with and agree to abide by the BOATSETTER Owner Policies and Procedures (incorporated herein) for the duration of your participation in the Service.
(e) If you are a Renter, you agree to inform BOATSETTER of any changes in your driving record including but not limited to any driving “incidents or any Major Violations” (as defined by the Eligibility Requirements).
(f) If you are a Renter, you are and will remain in compliance with and agree to abide by the BOATSETTER Renter Policies and Procedures (incorporated herein) for the duration of your participation in the Service.
(g) Your User Content and BOATSETTER’s use thereof as contemplated by this Agreement and the Service will not infringe any rights of any third party, including but not limited to any Intellectual Property Rights, privacy rights and rights of publicity. To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
- THIRD-PARTY LINKS.
- You agree to defend, indemnify and hold harmless BOATSETTER and its subsidiaries, agents, licensors, insurers, underwriters, managers, and other affiliated companies and their employees, contractors, agents, officers and directors, from and against any and all claims, causes of action, damages, obligations, losses, liabilities, liens, costs or debt and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including, but not limited to, any data or content transmitted or received by you; (ii) PERSONAL INJURY, DEATH OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE BOATSETTER SERVICE INCLUDING, BUT NOT LIMITED TO ANY INJURY, DEATH OR DAMAGE ARISING AS A RESULT OF A CHARTER; (iii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties contained herein; (iv) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (v) your violation of any law, rule or regulation of the United States (including local, state and federal laws) or the laws of any other country in which the Boat is operated; (vi) any claim for damages that arise as a result of any of your User Content or any that is submitted via your account; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
- BOATSETTER makes available insurance intended to provide certain coverage during some Charters for Charters transacted through the Service, as further described in our Insurance Summary, incorporated herein by reference. In the event a Charter in which you participate as a Renter results in a claim covered by this insurance, BOATSETTER will make reasonable efforts to assist you in submitting a claim. BOATSETTER does not guarantee insurance coverage nor the results of any claim submitted for coverage under a policy of insurance. No User of the Service should assume they are afforded any insurance coverage unless they receive specific confirmation from BOATSETTER or the insurance carrier(s). NOT ALL BOATS ON THE BOATSETTER SITE ARE COVERED BY INSURANCE AS SOME ARE COVERED BY THE OWNER’S INSURANCE POLICY. Remember — it is the User’s responsibility to determine whether insurance coverage exists and whether it is sufficient for their needs!
- NO WARRANTY.
- For Renters:The policy limits may not be adequate to cover fully Renter’s liability in the event that he or she is involved in an accident. Renter is responsible for all damage or injury that he or she causes to third parties that is not covered by the Policy. To the extent permitted by law, Renter and BOATSETTER hereby waive and reject the inclusion of “no-fault,” PIP, medical payments, uninsured boater, underinsured boater, supplementary no fault, or any other optional coverage. If such protection is imposed by operation of law, then the limits of such protection will be the minimum required by applicable law. There may be exclusions to coverage under the Policy, including exclusions for: running aground; theft; bodily injury to Renter or Renter’s family or to divers from the time they leave the Boat to the time that they are safely back on board; damage to Renter’s personal property; or damage to any marine estuary, artificial or natural reef. For a more complete list of exclusions and policy limits, please contact BOATSETTER at firstname.lastname@example.org. Coverage under the Policy is void if Renter breaches a material term of this Agreement, a Bareboat Charter Agreement entered into with another BOATSETTER Participant, or fails to cooperate in any loss investigation conducted by the insurer. The Policy does not apply to charters with BOATSETTER Propartners.
- For Owners: Owner agrees to comply with all applicable laws and regulations, including registration, numbering and minimum insurance requirements for his or her Boat. As a condition of participation in the BOATSETTER Program, Owner must maintain his own insurance policy as required by applicable law. With respect to any insurance policy (“Policy”) procured by BOATSETTER for the benefit of Owner, Owner hereby appoints BOATSETTER as Owner’s attorney-in-fact solely for the purpose of filing claims, receiving payment and otherwise administering that Policy. Owner also promises to maintain any proof of insurance in Owner’s Boat during every registration period, as requested by BOATSETTER. Owner will be fully responsible for any losses or damages suffered by any party as the result of Owner’s activities under this Agreement. In addition, coverage under the Policy is void if Owner breaches a material term of this Agreement, a Bareboat Charter Agreement entered into with another Participant, or fails to cooperate in any loss investigation conducted by BOATSETTER or our insurer.
IF YOU CHOOSE TO USE THE SERVICE AND/OR PARTICIPATE IN A CHARTER, YOU DO SO AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT BOATSETTER DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS ON ANY USER, INCLUDING BUT NOT LIMITED TO RENTERS, OWNERS, AND/ OR AFFILIATES. THE SERVICE AND ANY CONTENT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THERE IS ALSO NO WARRANTY OF WORKMANLIKE PERFORMANCE AND THE SAME IS SPECIFICALLY DISCLAIMED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BOATSETTER OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, BOATSETTER, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE OR ANY CHARTER WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF THE SERVICE.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE INCLUDING BUT NOT LIMITED TO RENTERS OR OWNERS. YOU UNDERSTAND THAT BOATSETTER DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICE AND BOATSETTER IS NOT RESPONSIBLE FOR THE ACTION OF USERS OF THE SERVICE.
BOATSETTER DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE BOATSETTER SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND BOATSETTER WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
You authorize BOATSETTER to make whatever inquiries we consider necessary (including requesting your consumer report from one or more consumer reporting agencies) in connection with your Registration and Charter of a Vessel and for any other lawful purpose (including collecting your account). ]
- LIMITATION OF LIABILITY.
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BOATSETTER, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, INSURERS, UNDERWRITERS, SUPPLIERS OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE, INCLUDING WITHOUT LIMITATION ANY CHARTER. UNDER NO CIRCUMSTANCES WILL BOATSETTER BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
(b) READ CAREFULLY! — TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BOATSETTER ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY, DEATH OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE INCLUDING, BUT NOT LIMITED TO ANY INJURY, DEATH OR DAMAGE ARISING AS A RESULT OF A CHARTER; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
(c) READ CAREFULLY! IN NO EVENT SHALL BOATSETTER, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, INSURERS, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, LIENS, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE GREATER OF EITHER (a) THE AMOUNTS PAID BY BOATSETTER TO YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY OR (b) ONE HUNDRED DOLLARS ($100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BOATSETTER AND YOU. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF BOATSETTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
(d) SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
(e) The Service is controlled and operated from its facilities in the United States. BOATSETTER makes no representations that the Service is appropriate for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by BOATSETTER without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
- Termination. You may terminate your participation in the Service at any time, for any reason, upon receipt by us of your written or email notice of termination. We may terminate your participation in the Service at any time, for any reason or no reason, without explanation. We maintain sole discretion to bar your use of the Service in the future, for any reason that we determine or for no reason. This Agreement will remain in effect after your participation in the Service terminates.
- Jurisdiction. You agree that: (i) the Service shall be deemed solely based in Florida; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over BOATSETTER, either specific or general, in jurisdictions other than Florida.
- Governing Law. This Agreement 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. You agree to submit to the personal jurisdiction of a state court located in Miami Dade County, Florida or the United States District Court for the Southern District of Florida, for any actions for which we retain 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 our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below.
For all Users: Owners and Renters must abide by all statutory and regulatory requirements of the United States, as well as the state and locality in which the Charter takes place. If, at any time, BOATSETTER’s policies differ from applicable federal, state, or local statutes, please remember that those legal requirements always preempt the BOATSETTER policies.
Specially Designated Nationals; U.S. Export Controls. By using the Site and participating in the BOATSETTER Program, Participant represents and warrrants that (i) neither Participant nor Participant’s listed Vessel is 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) Participant is not listed on any U.S. Government list of prohibited or restricted parties. Participant also will not use the Site or BOATSETTER Program for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons. BOATSETTER does not permit Profiles associated with certain countries due to U.S. embargo restrictions.
- Dispute Resolution. READ CAREFULLY! All claims and disputes arising under or relating to this Agreement 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 in effect at the applicable time and as found in their web site at www.arbresolutions.com. In the event that a party fails to pay any award, the award may be converted to judgment in a Court of competent jurisdiction.
- Class Action Waiver. This Agreement requires that the exclusive resolution of disputes is through individual legal action instead of through any 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.
- Notification Procedures. BOATSETTER may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through conspicuous posting of such notice on our website, as determined by BOATSETTER in our sole discretion. BOATSETTER reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. BOATSETTER is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. We recommend that you add email@example.com to your email address book to help ensure you receive email notifications from us.
- Entire Agreement/Severability. This Agreement, together with all amendments, all documents referenced in this Agreement, and any other legal notices and agreements published by BOATSETTER via the Service, shall constitute the entire agreement between you and BOATSETTER concerning the Service. If a court of competent jurisdiction or a properly convened arbitration panel deems any provision of this Agreement invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
- No Waiver. No waiver of any term of this Agreement 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 Agreement shall not constitute a waiver of such right or provision.
Signature. You understand that by checking the box next to “I have read and agree to the Agreement” and clicking on “Sign Up” on the Registration, USer is electronically signing this Agreement. If you accept or agree to this Agreement 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 this Agreement and in that case, “you,” “your” and “User” will refer to that company or other legal entity.
Please contact us at contact@boatsetter with any questions regarding this Agreement.