OneCaptain Terms of Service
These Terms of Service (the “Terms of Service”) apply to the provision of OneCaptain Services by OneWater Marine, Inc. (“OneWater”) provided to any person or entity (“You” or “Your”).
- OneCaptain Services. OneWater provides the following services (collectively the “OneCaptain Services”) by subscription (“OneCaptain Subscription”) pursuant to its OneCaptain application (the “OneCaptain App”)
- Telematics Services which are provided by Radian IoT, Inc., a third-party service provider, and are subject to the attached “Terms of Service and End-User License Agreement – Telematics Services App,” (the “Telematics TOS”) which are incorporated herein by reference as if fully set forth herein;
- Towing Dispatch Assistance and 24/7 On-Water Emergency Assistance. The Towing Dispatch Assistance and 24/7 On-Water Emergency Assistance are subject to the attached “Terms of Service for Towing and 24/7 On-Water Emergency Assistance” (the “Towing Dispatch Assistance and 24/7 On-Water Emergency Assistance TOS”) which are incorporated herein by reference as if fully set forth herein; and
- 24/7 Support Services which are provided by Boat Fix, Inc.., a third-party service provider, and are subject to the attached “24/7 Support Services Terms of Service,” (the “24/7 Support Services TOS”) which are incorporated herein by reference as if fully set forth herein.
BY SUBSCRIBING TO THE ONECAPTAIN SERVICES YOU ACCEPT AND AGREE TO ALL OF THE TERMS OF SERVICE INCLUDED HEREIN.
- Important Notices. SECTIONS 1.2, 1.3, AND 1.4, OF THE TELEMATICS TOS CONTAINS IMPORTANT LEGAL NOTICES RELATED TO MANDATORY ARBITRATION, LEGALLY BINDING AGREEMENT, AND TRACKING NOTIFICATION THAT APPLY TO ALL OF THE APPLICABLE ONECAPTAIN SERVICES, AS WELL AS THE SERVICES AS DEFINED IN THE TELEMATICS TOS, AND ONEWATER SHALL HAVE THE RIGHT TO ASSERT AND ENFORCE SUCH PROVISIONS DIRECTLY OR ON ITS OWN BEHALF. YOU UNDERSTAND, AGREE, AND ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THOSE PROVISIONS AND UNDERSTAND THAT THEY ARE PART OF YOUR AGREEMENT WITH ONEWATER.
- Applicability of Provisions of Telematics TOS. The provisions of the Telematics TOS apply to the OneCaptain Services as well as the Services as defined in the Telematics TOS, and OneWater shall have the right to assert and enforce such provisions directly or on its own behalf: Section 1.5, Section 4.3, Section 5.3, Section 5.4, Section 5.5, Section 5.6, Section 6, Section 7, Section 8 (subject to Section 8 of these Terms of Service as it relates to OneCaptain Intellectual Property), Section 9, Section 10, Section 11, Section 12, Section 13.2, Section 14, and Section 15.
- OneCaptain Subscriptions; Price; Payment; Taxes; Refunds.
- OneCaptain Subscriptions. At the end of any OneCaptain Subscription, in the event of a transfer of ownership of a Monitored Vessel to a new owner, a OneCaptain Subscription will need to be purchased. Unless otherwise provided, OneCaptain Subscription renewals will be directly with OneWater through its website www.onecaptain.com or in the OneCaptain App by logging in to Your account and navigating to the appropriate screen or selecting the appropriate menu item. Following expiration of any OneCaptain Subscription period, OneCaptain Subscriptions will automatically renew for subsequent monthly or annual, as the case may be, OneCaptain Subscriptions until cancelled in accordance with the provisions of this Agreement or Your OneCaptain Subscription plan.
- Price. All OneCaptain Subscription fees are for the provision of the OneCaptain Services, must be paid in advance for the duration of the OneCaptain Subscription or by automatic payment. By providing payment account information to us, You represent that You are an authorized user of such payment account. For automatic payment OneCaptain Subscriptions, Your account will be automatically charged monthly or annually, as applicable, at the rate and term applicable at the time of each automatic payment. The price of Your OneCaptain Subscription may change over time, and Your renewal will be charged at the rates then in effect for Your OneCaptain Subscription. Unless the OneCaptain Services are cancelled by You or us as allowed by these Terms of Service, we will continue to charge the payment account You provided, or a substitute account provided by You or Your card issuer. If a credit card is not provided for Services, it will be Your responsibility to provide one at the time of expiration in order to continue Services. WE MAY RECEIVE UPDATED CREDIT CARD INFORMATION FROM YOUR ISSUER. Your credit card issuer may give You the right to opt out of the update service.
- Payment. Payment for Services must be made in U.S. Dollars. Depending on the OneCaptain Subscription You choose, You will have different payment responsibilities, but You must always pay on time and (unless the law provides otherwise) in full in accordance with the OneCaptain Subscription You have selected. If You pay directly through the OneCaptain App, if Your credit, bank, or debit card provider refuses a charge or an automated withdrawal, we can also terminate or suspend Your Services. If You pay directly through the OneCaptain App, if You object to any fees or charges for services billed by or through us, You must tell us in writing within 30 days after the fee or charge is incurred (unless the law does not allow a time limit or the law requires a longer period), OR YOU WILL AUTOMATICALLY WAIVE THE DISPUTE.
- Taxes and Other Fees. You agree that You are solely responsible for and will pay all taxes, fees, assessments, and surcharges set by any governmental entity and charged to You by us (“Taxes”). Taxes are not included in the price of Your OneCaptain Subscription and are subject to change without notice. We may also charge You for additional fees related to costs or expenses for compliance with government regulations, which may include but are not limited to, universal service charges, emergency services assessments or charges, and other charges related to government compliance costs.
- This Section 4 of these Terms of Service, supersede and replace the provisions of Section 3 of the Telematics TOS for all OneCaptain Services, including but not limited to Services as defined in the Telematics TOS.
- Cancellation; Refunds.
- Cancellation and Refunds. Can I cancel my OneCaptain membership? We would hate to see if you go, but yes, email us at email@example.com to cancel. We do not offer refunds, but your services are transferable with the sale of your boat.
- This Section 5 of these Terms of Service, supersede and replace the provisions of Section 3 of the Telematics TOS for all OneCaptain Services, including but not limited to Services as defined in the Telematics TOS; except that Section 4.3 of the Telematics TOS shall continue to apply to the OneCaptain Services provided pursuant to the Telematics TOS.
- The foregoing Sections 6.1 and 6.2 supersede and replace the provisions of Sections 5.1 and 5.2 of the Telematics TOS for all OneCaptain Services, excluding the OneCaptain Services provided pursuant to the Telematics TOS; Sections 5.1 and 5.2 of the Telematics TOS shall continue to apply to the OneCaptain Services provided pursuant to the Telematics TOS.
- Governing Law. To the fullest extent permitted by law and except as explicitly provided otherwise, these Terms of Service and any disputes arising out of or relating to it will be governed by the laws of the state of Tennessee without regard to its conflict of law principles.
- Additional Restrictions.
- Some OneCaptain Services, benefits and products offered by OneWater may not be available to residents in certain states or outside the United States of America.
- You must :
- Respond promptly to any OneCaptain request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for OneCaptain to perform the Services in accordance with the requirements of these Terms of Service;
- Provide such Member information as OneCaptain may reasonably request to carry out the Services in a timely manner and ensure that such Member information is complete and accurate in all material respects; and
- Obtain and maintain all necessary licenses and consents and to comply with all applicable laws in relation to the Service before the date on which the Services are to start.
- Contact Us. If You have any questions regarding the OneCaptain Services or wish to deactivate the OneCaptain Services, contact us at: firstname.lastname@example.org or via the OneCaptain APP.
TERMS OF SERVICE AND END-USER LICENSE AGREEMENT IQ+ APP
(RADIAN IOT, INC.)
- Services. This Terms of Service and End-User License Agreement (the “Agreement” or “Service Agreement”) applies to the use of Company’s services (the “Services”) or the Company software (the “Software”), whether through a trial period, pre-paid subscription term, or user-paid subscription (“Consumer Subscription”). Radian IoT, Inc. and its subsidiaries and affiliates (“Company,” “we,” “us,” and “our”) provide Services using the Software through multiple access points, including but not limited to, (a) Company websites (“Website”), (b) the Company mobile application called IQ+ (the “App”), or (c) hardware installed on Your vessel (“Monitored Vessel”) to any person or entity who has a Consumer Subscription or who uses or accesses any of the Services, Software, Website, App, or Monitored Vessel (“you” or “your”) (including any operator of a Monitored Vessel, Authorized User (as defined herein), passenger or occupant who accesses the Services or Software). Collectively, the Services, Software, Consumer Subscription, Website, App, TD (as defined below) and any equipment, software, or other item necessary to deliver the Services is referred to herein as the “Company System” or the “System.”
YOU AGREE THAT RADIAN IOT, INC. IS SOLELY RESPONSIBLE FOR ITS SERVICES PROVIDED TO YOU. ONECAPTAIN IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR THE RADIAN IOT SERVICES.
- MANDATORY ARBITRATION PROVISION: USE OF THE SERVICES OR SOFTWARE IS SUBJECT TO MANDATORY ARBITRATION AND CLASS-ACTION WAIVER OF ANY DISPUTES WHICH MAY ARISE, AS SET FORTH IN SECTION 13 BELOW. PLEASE READ THAT SECTION CAREFULLY AND DO NOT USE THE SERVICES IN ANY MANNER AND IMMEDIATELY CONTACT US TO REQUEST DEACTIVITATION OF THE SERVICES IF YOU ARE UNWILLING TO AGREE TO THE MANDATORY ARBITRATION PROVISION.
- TRACKING NOTIFICATION. Your Monitored Vessel includes a telematics device (“TD”) that utilizes GPS signals and wireless data communications connections to transmit various information about your Monitored Vessel, including its location, to us in order to enable the Services. BY DEFAULT, THE TD ON YOUR MONITORED VEHICLE IS ON PRIOR TO AND WHEN YOUR MONITORED VEHICLE IS DELIVERED TO YOU (OR WHEN YOU INSTALL IT AND ACTIVATE IT) AND WILL REMAIN ON OR ACTIVE, INCLUDING CONTINUING TO COLLECT LOCATION AND OTHER DATA FROM YOU AND YOUR MONITORED VEHICLE, UNTIL SUCH TIME AS YOU CONTACT US AND REQUEST DEACTIVATION OF THE TD USING THE CONTACT INFORMATION PROVIDED IN THIS AGREEMENT. Please note that if the TD is deactivated, the Services may become fully or partially unavailable due to the loss of data necessary to provide the Services.
- Contact Us. If you have any questions regarding the Services or wish to deactivate the Services or the TD installed on your Monitored Vessel, you may reach us at: email@example.com
2. ELIGIBILITY; SERVICE REQUIREMENTS; SERVICE PROVIDERS.
- Eligibility. You represent and warrant that you (i) have reached the age of majority in the jurisdiction where you reside and have full legal capacity to form a binding contract with us or (ii) are at least 13 years of age (or equivalent minimum age in the jurisdiction where you reside) and will use the Services only with the permission of a parent or legal guardian who agrees to be bound by these Terms. You may use the Services only if you meet these eligibility requirements, you agree to the terms of this Agreement, and you are in compliance with the provisions of this Agreement and all applicable local, state, national and international laws, rules, and regulations. The Services are not available to any users previously prohibited from using the Services by Company, if you are not using the proper version of the Software, if you do not have a Monitored Vessel equipped with a functional TD, or if you have had the TD deactivated.
- Service Providers. Services are provided to you on behalf of Company. To provide those Services, Company interacts with and/or engages various third-party providers as necessary to provide the Services. These third-party providers include any person, company, or entity who provides any service, equipment, or facilities in connection with the Services or the Software, including, but not limited to, wireless service providers, underlying wireless carriers, suppliers, licensors, map or chart providers, emergency service providers, content or social media hosting platforms, communications providers, dealers, and repair, service, or maintenance facilities. Such third-party providers are referred to in this Agreement as “Service Provider(s)”.
3. CONSUMER SUBSCRIPTIONS; PRICE; PAYMENT; TAXES; REFUNDS.
- Consumer Subscriptions. Your Monitored Vessel will come with a TD installed and may have a complimentary Consumer Subscription of a certain term. At the end of any complimentary Consumer Subscription, in the event of a transfer of ownership of a Monitored Vessel to a new owner, or in the event of reactivation of a deactivated TD, a Consumer Subscription will need to be purchased. Unless otherwise provided, Consumer Subscription renewals will be directly with Company through the Website or in the App by logging in to your account and navigating to the appropriate screen or selecting the appropriate menu item; however, under certain circumstances, Consumer Subscription plans may be available for review and purchase through the dealer from which you purchased your Monitored Vessel (“Servicing Dealer”). Following expiration of any Consumer Subscription period, Consumer Subscriptions will automatically renew for subsequent monthly or annual, as the case may be, Consumer Subscriptions until cancelled in accordance with the provisions of this Agreement or your Consumer Subscription plan.
- Price. All Consumer Subscription fees are for the provision of the data services over the cellular data network and support and updates to the firmware of the TD installed on your Monitored Vessel, the Software and App are provided free of charge, must be paid in advance for the duration of the Consumer Subscription or by automatic payment. All prices are quoted net of any network or application store fees. By providing payment account information to us, you represent that you are an authorized user of such payment account. For automatic payment Consumer Subscriptions, your account will be automatically charged monthly or annually, as applicable, at the rate and term applicable at the time of each automatic payment. The price of your Consumer Subscription may change over time, and your renewal will be charged at the rates then in effect for your Consumer Subscription. Unless the Services are cancelled by you or us as allowed by this Agreement, we will continue to charge the payment account you provided, or a substitute account provided by you or your card issuer. If a credit card is not provided for Services, it will be your responsibility to provide one at the time of expiration in order to continue Services. WE MAY RECEIVE UPDATED CREDIT CARD INFORMATION FROM YOUR ISSUER. Your credit card issuer may give you the right to opt out of the update service.
- Payment. Payment for Services must be made in U.S. Dollars. Depending on the Consumer Subscription you choose, you will have different payment responsibilities, but you must always pay on time and (unless the law provides otherwise) in full in accordance with the Consumer Subscription you have selected. If you pay directly through the App, if your credit, bank, or debit card provider refuses a charge or an automated withdrawal, we can also terminate or suspend your Services. If you pay directly through the App, if you object to any fees or charges for services billed by or through us, you must tell us in writing within 30 days after the fee or charge is incurred (unless the law does not allow a time limit or the law requires a longer period), OR YOU WILL AUTOMATICALLY WAIVE THE DISPUTE. You are responsible for paying directly to any Service Providers all charges for services furnished by them that are not expressly covered by your Consumer Subscription (for example, emergency Towing Dispatch Assistance).
- Taxes and Other Fees. You agree that you are solely responsible for and will pay all taxes, fees, assessments, and surcharges set by any governmental entity and charged to you by us (“Taxes”). Taxes are not included in the price of your Consumer Subscription and are subject to change without notice. We or our Services Providers my also charge you for additional fees related to costs or expenses for compliance with government regulations, which may include but are not limited to, universal service charges, emergency services assessments or charges, and other charges related to government compliance costs.
4. CANCELLATION; REFUNDS.
- User Cancellation. You may cancel your Consumer Subscription by calling your Servicing Dealer. You will be required to authenticate your identity in order to cancel your Consumer Subscription. IF YOUR MONITORED VEHICLE IS LOST, DESTROYED, STOLEN, OR TRANSFERRED, YOU MUST CANCEL YOUR CONSUMER SUBSCRIPTION IN ORDER TO AVOID BEING CHARGED CONSUMER SUBSCRIPTION RENEWAL FEES. UPON CANCELLATION, YOUR COMPANY SERVICES MAY NO LONGER BE AVAILABLE.
- Refunds. If you cancel a pre-paid Consumer Subscription purchased directly through the App prior to its expiration or renewal date, you may be eligible for a pro-rated refund for the unused portion of your Consumer Subscription, depending on the terms of your particular Consumer Subscription. All cancellations shall be effective, for the purposes of refunds, at the end of the month in which proper a proper cancellation notice is received by Company.
- Content. Certain materials may be displayed or performed on the Services (including, but not limited to text, graphics, articles, photographs, video, images, and illustrations) (“Content”). The Content also includes information that you and other users provide us in the course of using the Services (collectively, “User Contributions”), which we may use to provide, maintain, and improve the Services. Some User Content may be visible to others. You may also post feedback, comments, questions, or other information to the Services, which shall also constitute User Contributions.
- Service Modifications. Company reserves the right, at any time and with or without advance notice, to modify, suspend, or terminate the Services, or any part thereof in its sole discretion. You agree that neither Company, nor any third party, shall have any liability to you in the event of any such modification, suspension, or termination of Services.
- Company Intended Use of the System and Services. The System and Services are intended to be used for non-safety and non-time-critical services and information only. Despite Company’s goal of high reliability and availability of the Services they are not intended to be available at all times and all locations and are therefore not intended for any navigational, safety or time-critical functions. You acknowledge and agree that Company shall not have any responsibility or liability for any damages allegedly caused by any outage or delay in the Services.
- No Use of Services for Life-Safety or Critical Purposes. You understand, acknowledge, and agree that the Services, whether provided solely by Company or in conjunction with other Service Providers, are not intended for navigational, life-safety or critical uses and are not certified for emergency response and that Company makes no representation or warranty that the use of the Services will in any way impact or improve your safety or the safety of anyone one else accessing or using the Services. YOU UNDERTSAND, ACKNOWLEDGE, AND AGREE THAT THE SERVICES, WHETHER PROVIDED SOLELY BY COMPANY OR IN CONJUNCTION WITH OTHER SERVICE PROVIDERS, IS NOT A MONITORED EMERGENCY NOTIFICATION SYSTEM, SHOULD NOT BE RELIED UPON TO NOTIFY ANYONE OF AN EMERGENCY, AND THAT COMPANY WILL NOT DISPATCH ANY EMERGENCY SERVICES UNDER ANY CIRCUMSTANCES. Any emergency services requests should be directed to the appropriate authority (local 911 system, U.S. Coast Guard, or other appropriate emergency response organization).
- Content Representations. You are solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services, or that you contribute in any manner to the Services. Posting of offensive, sexually explicit, profane, or otherwise inappropriate, as determined by Company in its sole discretion, Content or posting Content with the intent to demean, harass, threaten, or otherwise negatively impact another person is expressly prohibited and is grounds for suspension or termination of your Consumer Subscription and use of the Services. With respect to Content posted by you using the Services, you represent and warrant that you have all rights necessary to do so, in the manner in which you contribute it; and you grant to Company an irrevocable, perpetual, worldwide, royalty-free, assignable, sublicensable, transferrable license to use, modify, transfer, distribute, created derivative works from, reproduce, display, perform, or otherwise utilize such Content and any and all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right. Company reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have breached the immediately preceding sentence), or for no reason at all, in its sole and absolute discretion.
7. SERVICES LIMITATIONS
- Company Service Providers. Company utilizes the service of third-parties to provide the necessary products, services, and equipment to provide the System and Services which are beyond the control of Company, and which may affect the availability, operation, or control of the System or the Services. You acknowledge, understand, and agree that Company, its Servicing Dealer(s) and original equipment manufacturers (“OEM”) who install the product(s) on your Monitored Vessel, have no liability or responsibility for any claims, damages, or liability arising from or related to any unavailability, unreliability, or lack of performance of the System or the Services related in any manner to the performance of any third party product, service, or equipment provider.
- GPS and Cellular Service Limitations. The System receives signals from the Global Positioning Satellite (“GPS”) system and transmits signals to, and receives signals from, a Company or a third-party Customer Service Center (“CSC”). Services are provided either by a Company CSC or an independent CSC which Company selects. You understand that the System uses cellular telephone technology as the transmission mode for sending signals to the CSC. Services are available only within the Service Countries and only when the System is within the operating range of the wireless carrier. Consumer Subscription Services may be temporarily refused, interrupted, curtailed, limited or discontinued, without liability to Company or the wireless carrier, due to many conditions, including: (i) wireless transmission capacity limitations and cellular telephone network capacity limitations, (ii) atmospheric, terrain and geographic conditions, (iii) other natural or artificial environment conditions beyond Company’s control, (iv) limitations of the electrical system design and architecture of the System, (v) the condition of the System (for example, the System will not function if its power supply is not available as when, for example, the TD is not connected to a live power source, or if essential System components are damaged (accidentally or otherwise)), (vi) government regulations or limitations, (vii) restrictions by the wireless carrier (for example, wireless carrier equipment limitations and inter-carrier roaming agreements), (viii) usage concentrations, modifications, upgrades, relocation and repairs of transmission facilities for the cellular telephone network, (ix) Company’s efforts to combat fraudulent use, and (x) other legitimate business and operational reasons. The GPS system requires a line of site view of a certain minimum number of GPS satellites and the Global positioning capabilities used for some location-based services are not available if satellite signals are obstructed. You understand that the System’s usage of the GPS system and the cellular telephone network are fundamental to Company’s ability to provide the Services. You understand that due to the very nature of cellular telephone, network and GPS technologies, there will be times when the System is unable to secure, maintain, or transmit signals, or that the information transmitted is not reliable, and thus, Company will be unable to receive such signals. You also understand that Company does not receive signals when the transmission mode is or becomes non-operational and that signals from the System cannot be received by Company when the System is damaged, does not have an adequate power source, or is otherwise non-operational. Accordingly, you agree that Company shall not, in any way, be liable for, or have responsibility with respect to, the GPS system, the cellular telephone network, any of the information obtained therefrom, or for interruptions in service. You further acknowledge and agree that Company shall not have any liability for the interruption of Services due to electrical storms, power failures, interruption or unavailability of telephone service, cellular and radio frequency interference, or other conditions beyond Company control. You acknowledge and agree that the use of radio frequencies and cellular devices are strictly controlled and limited by the Federal Communications Commission (“FCC”) and other governmental authorities which from time to time have jurisdiction and that changes in rules, regulations and policies may necessitate discontinuing such transmission devices by Company or the wireless carrier at Company’s or the wireless carrier’s option.
- Navigation and Third-Party Maps. The System relies on third-party Service Provider generated maps in addition to the GPS system and wireless carrier to provide location services. Company makes no representation or warranty with respect to the accuracy or completeness of any third-party maps, or any location data based wholly or in-part thereon, and disclaims any liability arising therefrom. The System and Services are not intended to be used for vessel navigation or directions and disclaims all liability if used therefor.
- Wireless Carrier. Company and/or its designated Service Providers have contracted with, and will contract from time to time with, one or more wireless carriers (individually and collectively, “Wireless Carrier”) to provide wireless data transmission service (“Wireless Service”) for the Services over a cellular telephone network. You acknowledge and agree that you have no contractual relationship with the Wireless Carrier, and you are not a third-party beneficiary of any agreement with the Wireless Carrier. You understand and agree that the Wireless Carrier shall have no legal, equitable or other liability of any kind to you, and you hereby waive any and all such claims or demands. You acknowledge and agree that Service may be temporarily suspended or permanently terminated upon little or no notice in the event that the agreement with the Wireless Carrier is terminated. You waive any and all claims against the Wireless Carrier for such suspension or termination and waive any and all claims against Company for such suspension or termination provided a replacement Wireless Carrier is secured which results in a reasonable delay or suspension in Service as outlined in this Agreement. You understand that the Wireless Carrier cannot guarantee the security of wireless transmissions and will not be liable for any lack of security relating to the use of the Wireless Service in connection with the System or the Services.
- Disclaimer & Limitation of Liability Related to PSAP or 911 Service and Any Third-Party CSC. As noted in Section 6.2, the System and Services are not intended for navigational, life-safety or critical uses, including but not limited to communications to emergency responders. In no event shall Company be liable for losses, damages, or claims arising out of your use or attempted use of a public service answering point (“PSAP”) or 911 services or for your inability to access PSAP or 911 services.
8. INTELLECTUAL PROPERTY AND OWNERSHIP
9. WARRANTY DISCLAIMERS
- YOUR MONITORED VEHICLE’S LIMITED WARRANTY DOES NOT COVER THE COMPANY SERVICES, THE SYSTEM, THE SOFTWARE, THE WEBSITE, THE APP, THE TD OR THE WIRELESS CONNECTION, WHICH IS PROVIDED TO YOU ON AN “AS IS” AND “WHERE IS” BASIS, WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. IN ADDITION, COMPANY, YOUR SERVICING DEALER, AND THE OEM CANNOT PROMISE UNINTERRUPTED OR PROBLEM-FREE SERVICE OF THE SYSTEM AND CANNOT PROMISE THAT THE DATA OR INFORMATION PROVIDED TO YOU WILL BE ERROR-FREE. ALL DATA AND INFORMATION IS PROVIDED TO YOU ON AN “AS IS” BASIS. COMPANY, YOUR SERVICING DEALER, AND THE OEM HEREBY EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ABOUT THE COMPANY SYSTEM, THE COMPANY SERVICES AND ANY DATA AND INFORMATION AND SERVICES PROVIDED THROUGH IT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AS TO CONTENT, QUALITY, ACCURACY, TIMELINESS, COMPLETENESS, CORRECTNESS, RELIABILITY, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, INCLUDING ANY STATEMENTS BY ANY PARTY REGARDING THE CAPABILITIES, FUNCTIONS, OR FEATURES OF THE SYSTEM. ALL SUCH WARRANTIES ARE EXPRESSLY EXCLUDED BY THIS AGREEMENT. THE UNDERLYING WIRELESS CARRIER DOES NOT WARRANT THAT END USERS CAN OR WILL BE LOCATED USING THE SERVICE. YOU ASSUME ALL RISKS ASSOCIATED IN ANY WAY WITH YOUR USE OF THE SYSTEM OR SERVICES. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND/OR DO NOT ALLOW LIMITATIONS ON THE AMOUNT OF TIME AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- YOU ACKNOWLEDGE AND AGREE THAT NEITHER COMPANY NOR ANY OTHER PARTY HAS MADE ANY REPRESENTATIONS OR WARRANTIES, NOR HAVE YOU RELIED ON ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE SYSTEM OR SERVICES. YOU ACKNOWLEDGE THAT NO AFFIRMATION OF FACT OR STATEMENT (WHETHER WRITTEN OR ORAL) MADE BY COMPANY, ITS REPRESENTATIVES, OR ANY OTHER PARTY OUTSIDE OF THIS AGREEMENT WITH RESPECT TO THE SYSTEM OR SERVICES SHALL BE DEEMED TO CREATE ANY EXPRESS OR IMPLIED WARRANTY ON THE PART OF COMPANY OR ITS REPRESENTATIVES.
- COMPANY AND ITS SUPPLIERS OR SERVICE PROVIDERS MAKE NO WARRANTY THE ANY BUGS, DEFECTS, OR ISSUES WITH THE SYSTEM OR SERVICES WILL BE CORRECTED OR THAT THE SYSTEM OR SERVICES WILL BE COMPATIBLE WITH YOUR COMPUTER OR MOBILE DEVICE.
- COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO AND IS NOT RESPONSIBLE OR LIABLE FOR ANY SERVICE OR PRODUCT OFFERED BY ANY THIRD-PARTY THROUGH THE SERVICES. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.
- COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY CONTENT OR USER SUBMISSIONS ACCESSED THROUGH THE SYSTEM OR SERVICES AND IS NOT RESPONSIBLE OR LIABILE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF CONTENT OR USER SUBMISSIONS CONTAINED IN OR ACCESSED THROUGH THE SERVICES.
- INSURANCE; WAIVER OF SUBROGATION. NEITHER THE SYSTEM NOR THE SERVICES CONTSTITUTE AN OFFER OF OR PROVIDE ANY FORM OF INSURANCE FOR RELATING IN ANY MANNER TO THE SYSTEM OR THE SERVICES. Company recommends that you should protect against losses, claims, and liability that might arise during the operation of your Monitored Vessel and/or use of the System or Services with appropriate coverage limitations and other conditions and you are responsible for obtaining such insurance coverage at your own expense. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU RELEASE AND WAIVE SUBROGATION WITH RESPECT TO COMPANY AND ITS LICENSORS, SUPPLIERS AND SERVICE PROVIDERS FROM ALL LIABILITY FOR ANY LOSS, OCCURRENCE, EVENT OR CONDITION COVERED BY ANY APPLICABLE POLICY OR CONTRACT OF INSURANCE.
- LIMITATION OF LIABILITY. COMPANY SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY GENERAL, DIRECT, SPECIAL, INCIDENTAL, LOST PROFITS, AND EXEMPLARY, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE SYSTEM OR SERVICES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFIT OR REVENUES, LOSS OF USE, LOSS OF DATA, INCORRECT OR CORRUPTED DATA, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES, SERVICES, DOWNTIME COST, OR CLAIMS OF YOU FOR SUCH DAMAGES, EVEN IF COMPANY KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING OR ANY OTHER LIMITATION OF LIABILITY HEREIN, REGARDLESS OF THE FORM OF ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, YOUR EXCLUSIVE REMEDY AND THE TOTAL LIABILITY OF COMPANY AND/OR ANY SUPPLIER OF SERVICES TO COMPANY ARISING FROM OR RELATED TO THIS AGREEMENT IN ANY WAY, FOR ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FAILURE OF THE SYSTEM OR DISRUPTION OF THE SERVICES, SHALL BE LIMITED TO PAYMENT BY COMPANY OF DAMAGES IN AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE DIRECTLY PAID COMPANY FOR THE SERVICES PROVIDED UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PROCEDING THE DATE OF ANY SUCH CLAIM. Some states may not allow limitations of special, incidental, consequential, or exemplary damages, and the limitations specified herein may not apply to you.
- YOU ACKNOWLEDGE, UNDERSTAND AND AGREE THAT YOUR INDEMNIFICATION OBLIGATION TO THE COMPANY PARTIES APPLIES EVEN IF SUCH THIRD-PARTY ACTION AND ANY RELATED LOSSES ARISE FROM THE NEGLIGENCE OF ANY KIND OR DEGREE, BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NON-COMPLIANCE WITH APPLICABLE LAW, OR OTHER FAULT OR WRONGDOING OF ANY OF THE COMPANY PARTIES. HOWEVER, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO REQUIRE ANY INDEMNIFICATION WHICH WOULD RENDER OR MAKE THIS CLAUSE, IN WHOLE OR IN PART, VOID AND/OR UNENFORCEABLE UNDER APPLICABLE LAW. YOUR INDEMNIFICATION OBLIGATION SHALL NOT APPLY TO ANY WILLFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OF THE COMPANY PARTIES, OR THE GROSS NEGLIGENCE OF THE COMPANY PARTIES IN THOSE STATES THAT DO NOT PERMIT INDEMNIFICATION FOR GROSS NEGLIGENCE. “THIRD PARTY” IS DEFINED HEREIN TO INCLUDE, AMONG OTHERS, AN AUTHORIZED USER, OR OTHER USER OF THE SERVICES, INCLUDING WITHOUT LIMITATION, A SPOUSE, PARTNER, FAMILY MEMBER, PASSENGER, GUEST, NEIGHBOR, TENANT, EMPLOYEE, OR INSURANCE COMPANY. Company reserves the right to assume the exclusive defense and control of any matter for which you are required to indemnify it, and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Company’s prior written consent in its sole discretion. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
13. GOVERNING LAW; ARBITRATION; CLASS-ACTION WAIVER
- Governing Law. To the fullest extent permitted by law and except as explicitly provided otherwise, this Agreement and any disputes arising out of or relating to it will be governed by the laws of the state of Tennessee without regard to its conflict of law principles.
- TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, YOU AND COMPANY WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASS-WIDE BASIS. YOU MAY NOT EITHER JOINE A CLAIM WITH THE LCAIM OF ANY OTHER PERSON OR ENTITY OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY ARBITRATION, LAWSUIT, OR OTHER LEGAL OR REGULATORY PROCEEDING.
- TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREE THAT: (A) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (B) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
- Notices. Except as specifically provided in this Agreement, all notices required hereunder shall be in writing and shall be given by personal delivery, overnight courier service, first class mail postage prepaid, at the Company’s mailing address set forth in Section 1.6 hereof for notices to Company and at the address provided by you in your account profile for notices to you, or at such other address(es) as shall be specified in writing by such party to the other party in accordance with the terms and conditions of this Section. All notices shall be deemed effective upon personal delivery, or one business day following deposit with any overnight courier service, or three business days following deposit with the U.S. Postal System, first class postage attached, in accordance with this Section.
- Severance. The invalidity, in whole or in part, of any term or condition hereof shall not affect the validity of the remainder hereof.
- Waiver. The failure of Company to enforce at any time any of the terms and conditions hereof shall not constitute or be construed to be a waiver of such terms and conditions or of the right of Company thereafter to enforce any such terms and conditions.
- No Third-Party Beneficiaries. Your rights hereunder hereof are strictly for your benefit and not for any third-party beneficiary.
TERMS OF SERVICE FOR TOWING DISPATCH ASSISTANCE AND 24/7 MECHANICAL HELPLINE SERVICES
Depending on the Membership Plan and then-current Service offerings, and subject to availability, OneCaptain Services may include Towing Dispatch Assistance And 24/7 Mechanical Helpline Services
2. 24/7 On-Water Emergency Assistance
- OneCaptain will provide a mechanical helpline on a 24/7/365 basis that will assist You with issues relating to on-water mechanical breakdown issues. (“24/7 On-Water Emergency Assistance”).
- 24/7 On-Water Emergency Assistance are only available to Subscribers and are not transferable to other parties unless the Monitored Vessel is sold to other parties.
- OneCaptain will assist and advise You with stoppage of the Monitored Vessel which is not able to move under its own propulsion; provided, however, that OneCaptain shall not have any obligation to act or perform as repair technicians.
- All assistance rendered shall be limited to communication by phone or video phone. OneCaptain is not responsible for any ongoing or further repairs.
- OneCaptain shall not be responsible for: any repair that infringes upon a warranty; any consequential damage or deterioration; any repair not related directly to mechanical propulsion of the vessel; routine maintenance and repair; or the cost of any parts or fuel.
- OneCaptain will use commercially reasonable efforts to provide a successful outcome but is not obligated to provide support for more than sixty (60) minutes and does not guarantee a positive result.
3. TOWING DISPATCH ASSISTANCE
- If Your Monitored Vessel experiences a mechanical breakdown that prevents You from returning the applicable Monitored Vessel to its dock under its own mechanical propulsion and the 24/7 On-Water Emergency Assistance is unable to provide the required assistance, OneCaptain contact Seatow, BoatUs or a similar towing company on your behalf and at your expense (“Towing Dispatch Assistance”).
- Towing Dispatch Assistance are only available to the registered and activated OneCaptain Services subscriber and are non-transferable to other parties.
- The provision of any Towing Dispatch Assistance after a request from You shall be at the sole discretion of OneCaptain.
- The provision of Towing Dispatch Assistance shall only apply subject to the terms of the available towing companies.
- OneCaptain is not responsible for providing Towing Dispatch Assistance in those areas where no licensed towing operator is available.
24/7 SUPPORT SERVICES TERMS OF SERVICE (BOATFIX, Inc.)
AS MORE FULLY DESCRIBED IN THE ONECAPTAIN APP, THE ONECAPTAIN SERVICES INCLUDES SUPPORT SERVICES SUCH AS JUMPSTARTS, EMERGENCY FUEL DELIVERY, AND SOFT UNGROUNDING FOR UNDAMAGED BOATS WITHIN 10 NAUTICAL MILES OFFSHORE 24 HOURS PER DAY, 7 DAYS PER WEEK. ONECAPTAIN PROVIDES SUCH SERVICES THROUGH A THIRD-PARTY PROVIDER, BOAT FIX, INC. BY USING THE BOAT FIX™ SERVICE, INCLUDING CERTAIN PROPRIETARY SOFTWARE OF BOAT FIX (THE “SERVICE”), YOU ARE HEREBY AGREEING TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS (“TERMS OF SERVICE”).
YOU AGREE THAT BOAT FIX, INC. IS SOLELY RESPONSIBLE FOR ITS SERVICES PROVIDED TO YOU. ONECAPTAIN IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR THE BOAT FIX SERVICES.
These Terms of Service are an agreement between you and Boat Fix, Inc. (collectively with its successors and assigns, “Boat Fix”, “Service Provider”, “we” or “us”), and is in addition to, and not in lieu of, the written service agreement between you and/or your organization, on the one hand (collectively, “you” or “End User”), and Boat Fix, on the other hand, regarding the Service (as amended and in effect, the “Service Agreement”), the terms and conditions of which are hereby incorporated by reference thereto. The Service Contract has a minimum Contract Period during which the End User is obligated to pay the Service Charge. The Service Agreement may be entered into online during the purchase of the Boat Fix Device or online during the installation of the Boat Fix Device. To the extent there exists any ambiguity or conflict between these Terms of Service and the Service Agreement, the Service Agreement shall control. In order to use the Service, the Service Agreement between the End User and the Service Provider must be in effect. These Terms of Service and the Service Agreement (collectively, the “Agreement”) represents the entire agreement concerning the Service between End User, on the one hand, and Boat Fix, on the other hand, and supersedes any prior proposal, representation or understanding between the parties.
Boat Fix may, in its sole discretion and at intervals of its sole choosing, modify the Service and/or these Terms of Service at any time and without prior notice. It is your responsibility to monitor such changes, and to determine whether or not to continue to access and use the Service based upon any such changes. The Company shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service. The Service may update automatically and if such Service is designed for use on a specific mobile or desktop operating system, then a compatible system is required for use.
ALL COMMUNICATIONS TRANSMITTED THROUGH THE SERVICE MAY BE MONITORED FOR QUALITY ASSURANCE, TRAINING AND OTHER PURPOSES. BY ACCEPTING THESE TERMS OF SERVICE, YOU CONSENT TO ANY SUCH MONITORING.
- “Action Plan” means the pre-determined plan of action if any major event occurs aboard the applicable boating vessel upon which the Boat Fix Device is installed.
- “Boat Fix Device” means, collectively or individually, as the context so requires, any and all hardware that is sold by or distributed through Service Provider for use of the Service.
- “Boat Fix System” means, collectively, the servers and other hardware and infrastructure through which the Service is provided by Service Provider.
- “Contract Period” means the period during which the End User has subscribed and paid to use the Service as set forth in the Service Agreement.
- “Distributor” means any representative of Service Provider which is authorized by Service Provider to distribute Boat Fix Devices. The Service Provider’s initial distributor in the U.S.A. is Boat Fix, located at 376 Pequot Ave, Southport, CT 06890, U.S.A.
- “Early Termination Fee” means the fee charged to the End User if or when the End User terminates its Service Agreement prior to the expiration of the then-effective Contract Period. The current Early Termination Fee is $100.
- “Network” means the public telecommunications system through which the Boat Fix Service is made available.
- “Service Charge” means the fees paid or payable by End User for the Service during the Contract Period as set forth in the Service Agreement.
- “Website” means www.boatfix.com.
- Scope of Service
The Service includes cellular (GSM) communication between the Boat Fix Device and the Boat Fix Systems, text (SMS) message communication between the Boat Fix System and the End User’s mobile phone, e-mail communication between the Boat Fix System and the End User, and access to the Boat Fix’s web portal on the Website through the Internet. The Service also includes access to support during the Contract Period, free software upgrades, and the right to use the Service.
- Service Availability
The cellular (GSM) service is available both domestically within the U.S.A. and internationally. All cellular (GSM) communication between the Boat Fix Device and the Boat Fix System is included in the Service Charge. The End User hereby acknowledges that the availability of the Service may be affected by factors outside the Service Provider’s control such as, but not limited to, physical obstructions, availability of Internet connections, routing of data over the Internet, atmospheric conditions, and other causes of radio interference and by faults in other telecommunication networks to which the Network is connected. In connection with any such adverse effect on the quality and availability of the Service, the Service Provider shall incur no liability to the End User whatsoever. Notwithstanding such effects to the Services during the Contract Period, the End User shall remain liable for the payment of the Service Charge.
- Contract Period
Each Service Agreement has a defined Contract Period. The End User agrees that in no event may the Service be suspended or cancelled by the End User for 12 months following the commencement of the Contract Period and that the End User will continue to pay the Service Charge for a minimum of 12 months from the commencement of the Contract Period.
- Use of the Built-in SIM Card
The Boat Fix Device has a built-in SIM card, the title to which belongs to the Service Provider and not the End User. The Service Provider reserves the right to cancel the Service and permanently terminate the SIM card if:
- the End User fails to pay any Service Charge;
- the Service remains unused and the service agreement is not renewed or terminated after a period of three (3) months after the initial Contract Period has expired.
- If the SIM card is abused in any way or is removed from the Boat Fix Device.
If the Service is cancelled, the Boat Fix Device may be sent to Service Provider or Distributor for a replacement SIM card. A minimum service fee of US$ 100.00 will be charged for each SIM replacement. In the event that the Boat Fix Device and/or its internal SIM card are lost or stolen, the End User shall immediately notify the Service Provider. Until such notification has been received by the Service Provider, the End User is liable for any and all charges incurred by the use of the Boat Fix Device and/or the SIM card.
- Service Charges
The End User is required to pay the Service Charges promptly during the Contract Period or for as long as the Service Contract is in effect. The Service Charge is automatically billed to the End User’s credit card on the monthly or annual anniversary of the Service Contract throughout the Contract Period (the “Billing Cycle”). The End User is required to maintain and enter valid credit card information through the Boat Fix web portal, and the Service Charge will be billed and charged to such credit card each month or year, as applicable. Upon the End User’s failure to pay any Service Charge, the Service Provider reserves the right to limit or terminate the End User’s use of the Service and/or to terminate the Service Contract, and the End User shall remain liable to pay the Early Termination Fee. The Service Provider further reserves the right to adjust prices, terms, as determined by the Service Provider in its sole discretion. The Service Provider shall provide to the End User a minimum of one (1) months’ notice before any such adjustments take effect.
- Early Termination Fee
The Boat Fix Service Agreement may be terminated before the expiration date of the Contract Period, upon payment to Service Provider of the Early Termination Fee.
- Automatic Continuation of Service Contract
After the initial Contract Period has expired, the End User may continue to use the Service until the End User terminates the Service Contract in the manner described below or until the End User ceases to pay the applicable Service Charge. After the expiration of the initial Contract Period, the End User has the right to terminate the Service Contract by giving notice, in writing, to the Service Provider, in the manner set forth below. A monthly Service Charge will continue to be due from the End User for one (1) full month following date that the termination notice is given to the Service Provider.
- Termination of Contract
After the Contract Period has expired, the Service Contract may be terminated by the End User by giving notice, in writing, to the Service Provider, by U.S. mail, email or fax. Such termination of the Service Contract will become effective one (1) month after the first day of the month immediately following the date that such written notice has been received by the Service Provider. A confirmation of termination may be sent by the Service Provider to the End User. Service Provider, in its sole discretion, has the right to suspend or terminate your Account and refuse any and all current or future use of the Service for any reason at any time. Such termination of the Service will result in the deactivation or deletion of your Account or your access to your Account, and the forfeiture and relinquishment of all of Your Data (as defined below) in your Account. Service Provider reserves the right to refuse use of the Service to anyone for any reason at any time.
- Limitation of Liabilities
- The Service Provider is not liable for any goods stolen or damages incurred as a result of the Service not being available. The End User recognizes that factors outside the Service Provider’s control may affect the quality of the service. Furthermore, it is the responsibility of the End User to act on notifications sent by the Boat Fix Device and for maintaining an up-to-date action plan online so that alarms and warnings can be sent to the right person(s). It is also the End User’s full responsibility to inform any person(s) entered in the action plan of the desired action, should an alarm or warning be received. The Service Provider takes no responsibility for any data stored on the Boat Fix System by the End User that may be offensive, incorrect, or fraudulent.
- The service (including all databases, content, software, functions, materials and information accessed by any means thereof) are provided “as-is”, without warranties of any kind and boat fix disclaims, to the maximum extent permitted by law, any and all warranties, whether express or implied, including, without limitation, any implied warranties of originality, merchantability, noninfringement, title, arising from a course of dealing, usage, or trade practice or fitness for a particular purpose. Boat fix does not warrant that the service or functions contained in the service will be uninterrupted or error free, that all deficiencies, errors, defects, or nonconformities will be corrected, that the service will meet your specific requirements or that defects in the service will be corrected. Boat fix does not warrant that the service will work correctly in any particular operating environment. Boat fix does not warrant, guarantee, or make any representations regarding the use or the results of the use of the service in terms of its correctness, accuracy, reliability, currentness, or otherwise.
- Boat fix does not represent or guarantee that the service will be free from loss, corruption, attack, viruses, interference, hacking, or other security intrusion, and boat fix disclaims any liability relating thereto.
- Any material downloaded or otherwise obtained through the use of the service is accessed at your own discretion and risk, and you will be solely responsible for any damage to your device, computer, or loss of data that results from the download of any such material. You further acknowledge that the service is not intended or suitable for use in situations or environments where the failure or time delays of, or errors or inaccuracies in, the content, data or information provided by the service could lead to death, personal injury, or severe physical or environmental damage.
- Some jurisdictions do not allow the exclusion of certain warranties, as such, to the extent such exclusions are specifically prohibited by applicable law, some of the exclusions set forth above may not apply to you.
- In no event shall the service provider be liable to the end user or any third party for consequential, indirect, incidental, special, exemplary, punitive or enhanced damages, lost profits or revenues or diminution in value, arising out of, or relating to the end user’s use of (or inability to use) the service or the boat fix device, regardless of (a) whether such damages were foreseeable, (b) whether or not the service provider was advised of the possibility of such damages and (c) the legal or equitable theory (contract, tort or otherwise) upon which the claim is based.
- Account Registration and Terms
- In order to use the Service, you will be required to become a registered user of the Service by creating an account (“Account”). To create an Account, you must be of legal age to form a binding contract. If you are not of legal age to form a binding contract, you may not register to use the Service. The Service is not intended for use by persons under the age of 18. By using the Service you are representing to us that you are over the age of 18.
- When you register, you must choose a username and a password. You must provide your legal full name, a valid email address, and any other information requested in order to complete the registration process. You will be solely responsible for any activities or actions taken under your Account, whether or not you have authorized such activities or actions. Boat Fix is not responsible for any unauthorized access to your Account. You must notify Boat Fix immediately if you know or suspect that any unauthorized person is using your password or your Account. It is recommended that you access the Service only on a private computer or device to which you have control.
- You will not share your password, let anyone else access your Account, or do anything else that might jeopardize the security of your Account. You may not transfer your Account to anyone without first getting prior written consent from Boat Fix. If you select a username for your Account, Boat Fix reserves the right to remove or reclaim it if Boat Fix believes appropriate (such as when a trademark owner complains about a username that does not closely relate to a user’s actual name).
- You agree that the information that you provide to Boat Fix at all times is true, accurate, current, and complete. This information includes, but is not limited to, age, name, address(es), phone number(s) and e-mail address(es). By creating an Account, you expressly consent to the use of electronic records to store information related to these Terms of Service.
- You are responsible for maintaining the security of your Account and password. Boat Fix cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
- You are responsible for any data and content (“Your Data”) that you upload, post, transmit or otherwise make available via the Service (which may include data you elect to import from third party applications you use). Your Data includes, but is not limited to, age, name, address(es), phone number(s), e-mail address(es), and social security number(s). All of Your Data will immediately be inaccessible from the Service upon termination of the Agreement. Within 30 days after termination, all of Your Data, in addition to your Account, will be permanently deleted from all backups. This information cannot be recovered once it has been permanently deleted.
- You may not use the Service for any illegal purpose or to violate any laws in your jurisdiction (including but not limited to copyright laws). You agree not to use, download, or manipulate information in the Service in any way that may be harmful to patients, providers, healthcare organizations or anyone else, or in any way prohibited by applicable law or policy.
- You must be a human. Accounts registered by “bots” or other automated methods are not permitted.
- You agree to comply with such technical requirements as may be published by Boat Fix from time to time.
- You agree not to allow the Service to be placed on any third party web site.
- You agree that you will NOT use the Service to:
- upload, download, post, email, transmit, store, or otherwise make available any content that is unlawful, harassing, threatening, harmful, tortious, defamatory, libelous, abusive, violent, obscene, vulgar, invasive of another’s privacy, hateful, racially, or ethnically offensive, or otherwise objectionable; stalk, harass, threaten, or harm another;
- pretend to be anyone, or any entity, you are not — you may not impersonate or misrepresent yourself as another person (including celebrities), entity, another Service user, an employee/representative of Boat Fix, or a civic or government leader, or otherwise misrepresent your affiliation with a person or entity;
- engage in any copyright infringement or other intellectual property infringement (including uploading any content to which you do not have the right to upload), or disclose any trade secret or confidential information in violation of a confidentiality, employment, or nondisclosure agreement;
- post, send, transmit or otherwise make available any unsolicited or unauthorized email/text messages, advertising, promotional materials, junk mail, spam, or chain letters, including, without limitation, bulk commercial advertising and informational announcements;
- forge any TCP-IP packet header or any part of the header information in an email, text or group posting, or otherwise put information in a message designed to mislead recipients as to the origin of any content transmitted through the Service (“spoofing”);
- upload, post, email, transmit, store, or otherwise make available any material that contains viruses or any other computer code, files or programs designed to harm, interfere, or limit the normal operation of the Service (or any part thereof), or any other computer software or hardware;
- interfere with or disrupt the Service (including accessing the Service through any automated means, like scripts), or any servers or networks connected to the Service, or any policies, requirements or regulations of networks connected to the Service (including any unauthorized access to, use or monitoring of data or traffic thereon); and/or gather or store personal information on any other users of the Service to be used in connection with any of the foregoing prohibited activities.
- Limitations of Use:
- You are not granted any rights under any of Boat Fix’s trademarks, or any trademarks of any other third party or any other products or services of Boat Fix (including without limitation the Service).
- You acknowledge that the Service constitutes commercially valuable, proprietary property of Boat Fix, the design and development of which required the investment of substantial effort, time, and money and reflect, in part, the credibility and “good will” of Boat Fix.
- You agree that you will not (i) reverse engineer, modify, alter, disassemble, decompile, adapt or translate any part of the Service except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (ii) copy (except solely for back-up purposes), sell, loan, assign, sublicense, subcontract, transfer, give, disclose, pledge, lease, rent or share any portion of the Service or your rights or obligations under the Agreement; (iii) modify or prepare derivative works of the Service; or (iv) use the Service in a competing business. You agree to keep confidential the Service, and use your best efforts to prevent and protect the Service from unauthorized disclosure or use. You further agree that the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary information or materials in any way whatsoever except for use of the Service in compliance with the Agreement. No portion of the Service may be reproduced in any form or by any means, except as expressly permitted in these terms.
- Materials and Content
- All information and materials provided by Boat Fix through the Service, including but not limited to, text, trademarks, logos, graphics, videos, and images (the “Materials”), are the copyrighted works and other forms of intellectual property of Boat Fix or third parties who have authorized use of the Materials with the Service, unless otherwise provided in respect to specific areas or Materials in the Service. Unless otherwise provided in respect to specific areas or Materials in the Service, Boat Fix grants you only the limited license solely to display the Materials on your personal computer or personal mobile device. Such Materials may not be distributed, transmitted, displayed, or broadcast in any manner or for any purpose. You acknowledge and agree that you have no right to, nor will you modify, edit, alter, or enhance any of the Materials in any manner. Upon termination of the Agreement, you agree to immediately erase or otherwise destroy any downloaded and printed Materials. Except as expressly stated in the Agreement, you acknowledge that you have no legal right, title, or interest in or to the Materials other than a limited right of display.
- You understand that all Materials are the proprietary property of Boat Fix and are protected by copyright, trade secret, and other applicable laws. Submissions made by you or other registered users of the Service (“Submissions”) are not considered part of the Materials, but are subject to the restrictions set forth below. You acknowledge that the Materials constitute commercially valuable, proprietary, confidential property of Boat Fix, the design and development of which required the investment of substantial effort, time, and money and reflect, in part, the credibility and “good will” of Boat Fix.
- You acknowledge and agree that you have no right to modify, edit, alter or enhance any of the Materials in any manner. The Materials may not be distributed, transmitted, or broadcast in any manner, or for any purpose, unless expressly authorized to do so by Boat Fix, in advance, and in writing.
- You agree not to use the Materials in any way that would compromise the proprietary nature of the Materials. Without limiting all of the foregoing, you agree not to deliver the Materials themselves, either reproduced or modified, or anything derived from the Materials, either orally or in writing, as part of any seminar, training program, workshop, consulting, or similar business activity which you make available to others.
- Unless expressly indicated otherwise in the Agreement, even if you have previously obtained Boat Fix’s written permission to use any Materials or Submissions, you must obtain such written consent each time before again using any Materials or Submissions from this Service.
- Except as expressly stated in the Agreement, you acknowledge that you have no right, title, or interest of any kind on any legal basis in or to the Materials or the Submissions of any party.
- Content on the Service may be supplied by third parties and registered users of the Service. Accordingly, Boat Fix has no specific prior review process or editorial control over such content. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information of any provider or other registered user of the Service, are those of the respective parties and not necessarily those of Boat Fix. Neither Boat Fix nor any third-party provider of information guarantees the accuracy, completeness, or usefulness of any third-party content, nor its merchantability or fitness for any particular purpose.
- There may be links established between the Service and other sites on the World Wide Web or Internet which are not under the control of, or maintained by, Boat Fix. Such links do not necessarily constitute an endorsement by Boat Fix of those sites. Boat Fix undertakes no obligation to monitor such sites, and you agree that Boat Fix is not responsible for the content of such sites, or any technical or other problems associated with any such third-party site, links, or usage. You further agree that in the event that you establish a link from any other site to the Service, you will immediately discontinue such link upon receiving written notice from Boat Fix of its objection to any such link.
- Your Warranty and Indemnification
You represent and warrant to Boat Fix that your use of the Service will at all times comply with the Agreement, and all applicable law, rules and regulations. You agree to defend, indemnify and hold Boat Fix, its affiliates, subsidiaries, directors, officers, employees, agents, partners, contractors, and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (a) any content you submit, post, transmit, or otherwise make available through the Service; (b) your use of the Service; (c) any violation by you of the Agreement; (d) any action taken by Boat Fix as part of its investigation of a suspected violation of the Agreement or as a result of its finding or decision that a violation of the Agreement has occurred; or (e) your violation of any rights of another. This means that you cannot sue Boat Fix, its affiliates, subsidiaries, directors, officers, employees, agents, partners, contractors, and licensors as a result of its decision to remove or refuse to process any information or content, to warn you, to suspend or terminate your access to the Service, or to take any other action during the investigation of a suspected violation or as a result of Boat Fix’s conclusion that a violation of the Agreement has occurred. This waiver and indemnity provision applies to all violations described in or contemplated by the Agreement. This obligation shall survive the termination or expiration of the Agreement and/or your use of the Service.
- Your Use of Third Party Applications
We will use industry standard technical and organizational security measures, and as required by applicable law, in connection with the storage, processing and transfer of Your Data that are designed to protect the integrity of that Your Data and to guard against unauthorized or unlawful access to, use of, or processing of Your Data.
- General Conditions:
- It is your responsibility to create back-up files for any and all such information, data and files that you use In connection with the Service.
- You grant Boat Fix certain rights with respect to Your Data. For example, Boat Fix needs to be able to transmit, store and copy Your Data in order to display it to you or other registered users of the Service, to index it so you are able to search it, to make backups to prevent data loss, and so on. The Agreement gives Boat Fix the permission to do so and grants Boat Fix any such rights necessary to provide the service to you, only for the purpose of providing the service (and for no other purpose).
- You understand that the Company uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
- You expressly understand and agree that the failure of the Company to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision.
- The Service may contain technical data subject to export and re-export restrictions imposed by the government of the U.S.A. You shall not use the Service in any manner that results in violation of the export control laws and regulations of the U.S.A. You shall not, and shall not cause, any export or re-export, directly or indirectly, the Service or the accompanying materials to (i) any countries that are subject to U.S.A. export restrictions, (ii) any user of this Service who you know or have reason to know will utilize the Service and/or accompanying materials in the design, development or production of weapons, including nuclear, chemical or biological weapons, or (iii) any other user of this Service who has been prohibited from participating in U.S.A. export transactions by any federal agency of the government of the U.S.A.
- You acknowledge that any breach of your obligations under the Agreement with respect to the proprietary rights or confidential information of Boat Fix or any of its licensors will cause Boat Fix irreparable injury for which the remedies at law are inadequate and therefore Boat Fix is entitled to immediate equitable relief in addition to all other remedies provided by the Agreement or available at law or in equity.
- Except to the extent expressly provided below, the Agreement and the relationship between you and Boat Fix shall be governed by the laws of the State of Connecticut, excluding any conflicts of law provisions. You and Boat Fix agree to submit to the personal and exclusive jurisdiction of the courts located within Connecticut, to resolve any dispute or claim arising from the Agreement. If (i) you are not a U.S. citizen; (ii) you do not reside in the U.S.; (iii) you are not accessing the Service from the U.S.; and (iv) you are a citizen of one of the countries identified below, you hereby agree that any dispute or claim arising from the Agreement shall be governed by the applicable law set forth in the next sentence, without regard to any conflict of law provisions, and you hereby irrevocably submit to the non-exclusive jurisdiction of the courts located in the state, province or country identified below whose law governs. If you are a citizen of any European Union country or Switzerland, Norway or Iceland, the governing law and forum shall be the laws and courts of your usual place of residence. Specifically excluded from application to the Agreement is that law known as the United Nations Convention on the International Sale of Goods.
- You acknowledge and agree that Boat Fix may, without liability to you, access, use, preserve and/or disclose your information and content to law enforcement authorities, government officials, and/or a third party, as Boat Fix believes is reasonably necessary or appropriate, if legally required to do so or if we have a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to: (i) comply with legal process or request; (ii) enforce the Agreement, including investigation of any potential violation thereof; (iii) detect, prevent or otherwise address security, fraud or technical issues; or (iv) protect the rights, property or safety of Boat Fix, its users, a third party, or the public as required or permitted by law.
- If any part of these Terms of Service, or the application thereof to any person or circumstance, is for any reason held invalid or unenforceable, it shall be deemed severable and the validity of the remainder of these Terms of Service or the applications of such provision to other persons or circumstances shall not be affected thereby.
- Boat Fix may assign its rights under these Terms of Service at any time without notice.
- The provisions of these Terms of Service are for the benefit of Boat Fix, and its subsidiaries, affiliates and its service providers and each shall have the right to assert and enforce such provisions directly or on its own behalf.
- These Terms of Service shall be binding upon the successors, heirs and assigns of the parties.
We respect your privacy and are committed to protecting it through our compliance with this policy. This policy applies to information we collect:
- On the Website.
- In e-mail, text and other electronic messages between you and us, including, without limitation, electronic communications through the Website.
- Through software, including, without limitation, mobile applications, that you download from the Website.
It does not apply to information collected by:
- Us offline or through any other means, including on any website operated by third parties; or
- Any third party (including our affiliates and subsidiaries), including through any application or content (including advertising) that may link to or be accessible from or on the Website.
- Data Acquisition
In order to help us personalize and continually improve your experience at the Website, we may gather certain types of information. The types of information we gather are:
a. Information You Give Us
b. Automatic Information
As is true of most websites, we gather certain information automatically and store it in log files. This information may include Internet protocol (IP) addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp, and/or clickstream data. We may combine this automatically collected log information with other information we collect about you. We do this to improve services we offer you and site functionality. We may partner with third parties to either display advertising on our website or manage our advertising on other sites. Our third party partners may use technologies such as cookies to gather information about your activities on this website and other sites in order to provide you with advertising based upon your browsing activities and interests.
c. Email Communications
We store all email correspondence between you and the Website in order to improve your future experiences. We may use your contact information in order to send you email or other communications regarding updates at the Website.
The Website may contain publicly accessible blogs or testimonials. You should be aware that any information you provide in these areas may be read, collected and used by others who access them. To request removal of your personal information from a blog or testimonial, contact us. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why.
2. How We Use Information We Gather
We use information that we collect about you or that you provide to us, including any personal information:
- To present the Website and its contents to you.
- To provide you with information, products or services that you request from us.
- To fulfill any other purpose for which you provide it.
- To provide you with notices about your account/subscription, including expiration and renewal notices.
- To carry out our obligations and enforce our rights arising from any contracts entered into between you and us, including for billing and collection.
- To notify you about changes to the Website or any products or services we offer or provide through it.
- In any other way we may describe when you provide the information.
- For direct marketing by us for internal market research.
- For any other purpose with your consent.
This Website will not sell or otherwise provide information to third party advertisers to assist in the marketing of third-party products or services to users.
3. Disclosure of Information
- To our subsidiaries and affiliates for various purposes.
- To contractors and service providers we use to support our business and who are bound by contractual obligations to keep personal information confidential and use it only for the purposes for which we disclose it to them. These companies are authorized to use your personal information only as necessary to provide these services to us.
- To a buyer or other successor in the event of a merger, divestiture, restructuring, reorganization, dissolution or other sale or transfer of some or all of the Company’s assets, whether as a going concern or as part of bankruptcy, liquidation or similar proceeding, in which personal information held by the Company about the Website users is among the assets transferred. You will be notified via email and/or a prominent notice on our Web site of any change in ownership or uses of your personal information, as well as any choices you may have regarding your personal information.
- To third parties who provide services on our behalf to help with our business activities.
- To fulfill the purpose for which you provide it.
- For any other purpose disclosed by us when you provide the information with your consent.
We may also disclose your personal information:
- In certain situations, Boat Fix, Inc may be required to disclose personal data in response to lawful requests by public authorities, including to meet national security or law enforcement requirements.
- To comply with any court order, law or legal process, including to respond to any government or regulatory request.
- To enforce or apply our Terms of Service and other agreements, including for billing and collection purposes.
- If we believe disclosure is necessary or appropriate to protect the rights, property, or safety of the Company, our customers or others.
We DO NOT control and are not responsible for any information provided to or disseminated by administrators or other users.
We use the information you provide when placing a purchase order to fulfill the purchase order. We do not share this information with third parties except as needed to fulfill that purchase order. We use the information you provide about someone else when placing a purchase order to ship the product and to confirm delivery. We will not share this information with third parties except as needed to fulfill the purchase order.
4. Access and Choice
You may request deletion or correction of your personal information by contacting us by email or postal mail at the contact information listed below. We will respond to your request within a reasonable timeframe. We will retain and use your information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements.
5. Public Areas of the Website
Some areas of the Website may be public areas. These are OPEN PUBLIC FORUMS and must be treated as such. You should be aware that any information you provide in these areas may be read, collected, and used by others who access them.
6. Data Security.
We have implemented measures designed to secure your personal information including a variety of privacy and security policies, processes and procedures, including administrative, physical and technical safeguards that we deem to reasonably and appropriately protect the integrity and availability of the personal information that it creates, receives, maintains or transmits. In addition, we endeavor encrypt the transmission of such personal information using secure socket layer technology (SSL). The safety and security of your information also depends on you. Where we have given you (or where you have chosen) a password for access to certain parts of the Website, you are responsible for keeping this password confidential. We ask you not to share your password with anyone. We urge you to be careful about giving out information in public areas of the Website like message boards. The information you share in public areas may be viewed by any user of the Website. Unfortunately, the transmission of information via the internet is not completely secure. Although we do our best to protect your personal information, we cannot guarantee the security of your personal information transmitted to the Website. Any transmission of personal information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures contained on the Website.
7. Third Party Websites
The Website may contain links to third party websites over which we have no control. We are not responsible for the privacy policies or practices of other websites. We encourage you to review the privacy policies of those other websites so you can understand how they collect, use, and share your information.
8. Widgets and Social Media Features
9. Open ID Provider
You may be able to log in to the Website through sign-in services such as Facebook Connect or an Open ID provider. These services will authenticate your identity and provide you the option to share certain personal information with us such as your name and email address to pre-populate our sign up form. Services like Facebook Connect give you the option to post information about your activities on this Web site to your profile page to share with others within your network.
10. Children Under the Age of 13
The Website is not intended for children under 13 years of age. No one under age 13 may provide any information to or on the Website. We do not knowingly collect personal information from children under 13. If you are under 13, do not use or provide any information on this Website or on or through any of its features, register on the Website, make any purchases through the Website, use any of the interactive or public comment features of this Website or provide any information about yourself to us, including your name, address, telephone number, e-mail address or any screen name or user name you may use. If we learn we have collected or received personal information from a child under 13 without verification of parental consent, we will delete that information. If you believe we might have any information from or about a child under 13, please contact us.
11. Data Retention
12. Mobile Privacy
14. Contact Information
The Website is operated by Boat Fix, Inc., a Delaware corporation, which developed and owns the content on the Website. You can contact us at firstname.lastname@example.org.