FINDSLIPS, INC. LICENSE FOR WEB SITE AND SERVICE USE AGREEMENT
I. TERM: 30 Calendar days, beginning on the date Owner’s check clears Findslips’ bank or the Owner’s credit card is accepted to pay the applicable fee or fees and then terminating 30 calendar days thereafter unless another check or credit card charge renews the License.
THIS LICENSE AGREEMENT (the "Agreement") is made as of the date set forth below, by and between FindSlips and the person(s) named as REGISTERED OWNER (or the Owner’s authorized agent) of the vessel more fully described in the Vessel Owners profile on FindSlips site, (the "Vessel") and is hereinafter referred to as "Owner" of the Vessel under the terms and conditions set forth herein and below:
Owner and FindSlips, Inc., a California corporation (hereinafter “FindSlips”) that operates the website, FindSlips.com and slip finding service (“the Web Site”) hereby agree:
The Owner and FindSlips expressly agree that all the terms and conditions contained in the Terms of Service for FindSlips are incorporated into this Agreement by this reference and to the extent that there is any conflict between a provision of the Terms of Service and this Agreement, the terms and conditions of this Agreement shall prevail
1. Vessel. Owner warrants that he/she/it is the owner of the Vessel and is authorized to bind all joint owners of the Vessel to the terms of this Agreement. If the person signing this Agreement is an agent for the owner or any joint owners, the Agent represents and warrants that he/she is authorized to enter into this Agreement on behalf of the owner and to bind all joint owners of the Vessel, as well as the Vessel itself.
2. Vessel Documentation. Owner warrants that the Vessel is properly documented or registered as set forth in Section I above and that the Vessel complies with all applicable State and U.S. Coast Guard safety regulations.
3. Vessel Condition. Owner represents and warrants that the Vessel is and will be maintained in a seaworthy, operable condition and will maintain the Vessel’s appearance, which will include regular cleaning, maintenance and/or replacement of all painted and varnished surfaces, all bright work, rigging, safety equipment and any other appurtenances of the Vessel. Owner agrees that FindSlips does not have any personal knowledge regarding the adequacy of the Vessel's condition, maintenance and appearance; and that FindSlips has no duty to determine the Vessel's condition, maintenance and appearance. Owner agrees to hold FindSlips harmless from and against all claims that may arise out of or relate to the Vessel’s condition, regardless whether it is claimed that FindSlips is or was partially or solely negligent.
4. Use of the FindSlips Web Site and Service. FindSlips licenses to Owner the use of the Web Site – FindlSlips.com – (the “Web Site”) and FindSlips’ services provided through the Web Site and by any other means solely for a specific time period – one month – and solely for the purpose of Owner seeking and if successful, finding a slip for the Vessel (hereinafter referred to as a or the “Slip”) – regardless whether such search or searches result in the licensing (or rental) or purchase of a Slip - and for no other purpose.
FindSlips agrees that upon payment of the applicable fee for the use of the Web Site, Owner may use the Web Site and Service for that specific period only, unless the Owner renews for another period by payment or charge to Owner’s Credit Card.
5. FindSlips’ Limited Role in Connecting Owners of Vessels with Owners of Slips. Owner expressly agrees that FindSlips only licenses owners of Vessels and owners of moorings, slips or other accommodation to use of the Web Site – FindlSlips.com – (the “Web Site”) solely for a specific time period and solely for the purpose of seeking and if successful, finding slips for owners’ vessels – regardless whether such search or searches result in the licensing (or rental) or purchase of slip - and for no other purpose.
Owner agrees that upon payment of the applicable fee for the use of the Web Site – Owner has the right for the specified period of time to search for Slip, subject to the other applicable terms and conditions of this Agreement.
Owner agrees that FindSlips is not acting as a broker or agent for any person or entity who may use the Web Site, and while FindSlips may provide services to both owners of vessels and owners of Slips, FindSlips is not and will not negotiate the terms of any transactions between owners of vessels or owners of Slips.
Rather, any terms and conditions of any transactions between users of the Web Site – regardless whether the users are owners of vessels or owners of Slips - are agreed and deemed to be negotiated by and between the users of the Web Site – not FindSlips.
Owner agrees that FindSlips has no duty to provide any services to Owner, or any other user of the Web Site, other than those services that FindSlips has specifically agreed to provide under this license – which is a license for to provide Owner a forum for Owner to search for and if successful, find a Slip for the Vessel.
6. Limitation on Transferring Web Site License to Others. Owner warrants that while Owner is licensed to use the Web Site, Owner is not allowed to transfer Owner’s license to use the Web Site to any other person for any purpose whatsoever, without the express written permission of the CEO of Findslips. Owner also warrants and agrees that Owner will not engage in any commercial activity while using the Web Site – other than that activity for which Owner has a specific license -- or otherwise use or allow any other person to use the Web Site or FindSlips’ services for any purpose or activity.
8. Term. This Agreement shall create a license commencing on the date (and if applicable, time) and shall continue for thirty (30) days or until default under the provisions of this Agreement or until terminated by either party by prior written notice. Owner agrees to exempt, hold harmless and indemnify FindSlips from and against any claims for damages, including subrogation, arising out of or relating to the Vessel or a Slip, even if such damage is claimed to have been caused solely or partially by the negligence of FindSlips.
9. License Fee. For each agreed period, Owner agrees to pay FindSlips the License Fee then in effect based upon length of Slip or overall length of Vessel, whichever is longer, in advance on the first day of each agreed period. All License Fees not paid as agreed on the date agreed shall be deemed delinquent and may subject the License to immediate termination.
10. Fees for Late Payment; Returned Checks or Rejected Credit Cards Charges. To compensate FindSlips for the loss of License Fees due, for costs incurred to handle returned checks or rejected credit card charges, delinquent License Fees, and consequential reports to FindSlips, Owner agrees that payment by means of a returned check shall not constitute timely payment, which will result in immediate termination of this License. In addition, there will be a $35.00 fee charge for payment with a returned check or a rejected credit card charge if Owner takes steps to remedy the returned check or rejected charge and reinstate the License. Two returned checks or rejected credit card charges may result in permanent termination without the ability to reinstate, at FindSlips' option.
11. Adjustment of Fees. FindSlips may increase or decrease the License Fee at the end of any calendar month by notifying the Owner in writing thereof at the email address that Owner has provided FindSlips 30 calendar days in advance of the effective date of the increase or decrease. Any adjustment of the License Fees shall be deemed delivered to Owner when notice thereof is sent to the email Owner provides FindSlips. Adjustments in License Fees shall become effective on the first day of the calendar month next following the month in which notice is provided. If the Owner fails to pay any new License Fee after its effective date, FindSlips may terminate this Agreement, and access to the Web Site as of the effective date.
12. Liability and Indemnity. VERY IMPORTANT PLEASE READ CAREFULLY.
Owner, as a material part of the consideration to be rendered FindSlips under this Agreement (and the low License Fee offered by FindSlips in exchange for the following consideration), hereby expressly agrees that:
Owner expressly assumes any and all risk for, waive and exempt FindSlips and its agents and employees (“FindSlips”), as well as hold harmless, indemnify FindSlips from and against, any and all claims, including subrogation by Owner’s insurer(s), against FindSlips for any damages to the Owner or the Vessel or her appurtenances, or for injury or death to Owner, Owner's family, relatives, agents, employees, contractors, licensees, charterers, contractors, or guests that may occur, arise out of or relate in any way to Owner’s use of a slip, the Vessel, the Web Site or FindSlips’ services. The foregoing waiver includes all claims, damages or injuries that may be caused or asserted solely or partially as a result of the negligence of FindSlips in connection with a slip, the Vessel, the Web Site or FindSlips’ services.
Owner acknowledges that FindSlips has not made any representations or warranties with respect to the nature, suitability, merchantability, fitness or condition of the Web Site or its services, the Vessel, any Slip that Owner may find for the Vessel, or any common areas in or around the marina where a Slip for the Vessel may be located, and that no such warranties or representations shall be implied.
Owner agrees that Owner shall, at Owner’s own cost and expense, maintain liability and property damage insurance (which insurance shall provide primary rather than secondary coverage) with liability limits in amounts sufficient to ensure performance by Owner of all the exemption, waiver, hold harmless and indemnity provisions contained in this Agreement, including claims involving premises liability or FindSlips’ or any Slip or the Vessel owner’s (or agents’ or employees’) negligence.
Owner shall, in any event, carry liability insurance and property damage insurance, with limits of at least $1 million for the Vessel. Owner’s failure to comply with or demonstrate compliance with this provision does not in any way constitute a waiver by FindSlips of this provision.
Even if every other subparagraph contained in this paragraph of this Agreement is deemed invalid, inapplicable or unenforceable, Owner nevertheless agrees that FindSlips’ liability for any claim that arises out of or relates to this Agreement, including claims based on FindSlips’ negligence in connection with the Vessel, a slip at which the Vessel may be located, the Web Site or FindSlips’ services, shall be expressly limited to no more than $1,000 or one month’s License Fee, whichever is greater.
13. Mediation. Except in the event that injunctive or ex parte relief is required, prior to the initiation of any legal action or arbitration proceeding by any Party to this Agreement, the relevant disputing Parties shall first mediate any dispute or claim between them arising out of or relating to this Agreement or any resulting relationship or transaction between such Parties. Any Party may demand mediation by means of written notice to any other Party. which notice shall state generally the nature of the dispute to be resolved. Not later than ten calendar days after the date such written notice is provided, the Parties shall agree upon a mediator. If the Parties cannot agree upon a mediator, the matter shall be submitted to the JAMsEndispute (“JAMS”) for appointment of a mediator and to conduct the mediation. The Mediation shall take place in Orange County, California. The Parties shall have 45 calendar days from the selection of a mediator to commence the first mediation session. The Parties shall share all mediation costs equally, unless the Owner is a consumer, in which case FindSlips shall bear the mediation costs. The Parties agree that any mediated settlement agreement may be entered as an arbitration award or judgment (or both) and enforced in accordance with the governing rules of California Civil Procedure. Should any Party fail to participate timely and in good faith in the selection process for the mediator, or in the mediation process, such Party will be deemed to have refused mediation, and that Party shall not be entitled to attorney fees that might be otherwise available either by contract or statute to it in any subsequent court action or arbitration.
14. The Parties hereby agree that with the if injunctive or ex parte relief is required, any dispute, claim or controversy arising out of or relating to this Agreement must be settled by binding arbitration pursuant to the Rules and Procedures of the American Arbitration Association (“AAA”), (but if Owner is a consumer, Owner may choose a different arbitration organization with consumer rules then in effect for arbitration in Orange County, California, the United States.)
The Parties also hereby waive their right to discovery (except as allowed under AAA Rules), a trial by jury and the right of appeal that would normally apply to court proceedings and judgments. The substantive and evidentiary law applicable to all controversies decided by Arbitration shall be the Federal Maritime Law (or California law if applicable) and the Federal Rules of Evidence. This Agreement shall be enforceable and judgment upon any award rendered by any AAA Arbitrator may be entered by any court having jurisdiction.
15. Attorney’s Fees. If either FindSlips or Owner shall obtain legal counsel or bring an action against the other based on any dispute arising out of or relating to this Agreement, the prevailing party shall be entitled to an award of reasonable attorney’s fees and costs.
16. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Parties. Owner and FindSlips agreed that Paragraphs 14 and 15 of this Agreement are subject to and should be interpreted under the Federal Maritime Law. This Agreement supersedes or replaces all previous agreements, licenses, or understandings, whether oral or written, with respect to the Web Site, FindSlips’ services or the Vessel. Should any portion of this Agreement be ruled invalid, such invalidity shall in no way affect the validity of this Agreement or any other portion thereof. This Agreement may be altered or modified only by a subsequent written agreement executed by both the CEO of FindSlips and Owner.
Each signatory to this Agreement represents and warrants that he or she is fully authorized to execute this Agreement, either for himself or herself, or on behalf of his or her principal; has read the Agreement; and has been given a copy.
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