Revised May 1, 2019
Terms of Service Agreement
THIS TERMS OF SERVICE AGREEMENT (the "Agreement") is made as of the date set forth below, by and between FindSlips, LLC and the person(s) named as REGISTERED OWNER (or the Owner’s authorized agent) of the slip more fully described in the Slip Owners profile on FindSlips site (the "Slip") and is hereinafter referred to as "Owner" of the Slip under the terms and conditions set forth herein and below:
Owner and FindSlips, LLC, a Delaware limited liability company (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. Slip. Owner warrants that he/she/it is the owner of the Slip 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 Slip, as well as the Slip itself. A Slip can be a marina slip, commercial slip, private slip, mooring, dry dock, etc.
2. Slip Documentation. Owner warrants that the Slip is properly titled, documented or registered as set forth in Sections 1 above and that the Slip complies with all applicable local, State and U.S. Coast Guard safety and other applicable regulations.
3. Slip Condition. Owner represents and warrants that the Slip is and will be maintained in reasonably safe, sanitary and attractive condition. Owner agrees that FindSlips does not have any personal knowledge regarding the adequacy of the Slip's condition, maintenance and appearance; and that FindSlips has no duty to determine the Slip's condition, maintenance or appearance of the Slip. Owner agrees to hold FindSlips harmless from and against all claims that may arise out of or relate to the Slip’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”) solely for a specific time period, which is on a month to month basis. Owner agrees and accepts that FindSlips is providing access to the website solely for the purpose of Owner seeking and finding a customer or lessee for the Slip. Owner agrees and accepts that there is no guarantee of finding a customer or lessee of Owner’s Slip. Owner agrees and understands that seeking customers or lessees of Owner’s Slip is the sole purpose of the website and to use it only for those purposes and for no other purpose. Owner agrees that upon using the Findslips website and finding a customer or lessee of Owner’s Slip, that Owner will have the option to either pay the convenience fee to FindSlips or have the customer pay the convenience fee when the Owner initially sets up their profile in FindSlips.
5. FindSlips’ Limited Role in Connecting Owners of Vessels and Slips. Owner expressly agrees that FindSlips only provides access to its website to owners of Vessels and owners of slips or other accommodations through the FindSlips Web Site – FindlSlips.com – (the “Web Site”) solely for the purpose of seeking and if successful, finding Slips for owners’ vessels -- and for no other purpose.
Owner agrees that upon the acceptance by customer or lessee to use Owner’s Slip, that Owner will have the option to either pay the convenience fee to FindSlips if FindSlips finds a customer or lessee for the Owner’s Slip or have the customer pay the convenience fee when the Owner initially sets up their profile in FindSlips website. 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 to use the FindSlips Website to provide Owner a forum for Owner to search for and if successful, find a customer or lessee for the Slip.
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 Findslips. Owner also warrants and agrees that Owner will not engage in any commercial activity with another User of the FindSlips website outside of the website.
8. Term. This Agreement shall create a license commencing on the date (and if applicable, time) and shall continue in perpetuity 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 Slip or any vessel located at the Slip, even if such damage or injury is caused solely or partially by the negligence of FindSlips.
9. Fees. a. Owner agrees to the following payment terms and conditions relating to the Slip. Upon the Owner creating their profile on FindSlips website, Owner will be given a choice to either (a) absorb both the convenience fee and merchant fee, (b) share the fees with the customer or (c) pass all the fees for the customer to pay when they lease the slip.
b. Payments. Payments received on behalf Owner:
1. Owner can use FindSlips merchant service platform and receive payment directly from the customer; or
2. Owner can have FindSlips collect the payments for Owner and have FindSlips remit payment to Owner as arranged. Payments can be remitted to Owner by FindSlips monthly or every two weeks and payment may be in form of a check, ACH, wire transfer or credit card.
10. Fees for Late Payment; Returned Checks or Rejected Credit Cards Charges. To compensate FindSlips for the loss of Commissions and Fees due and payable, for costs incurred to handle returned checks or rejected credit card charges, delinquent 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 and access to the website. 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 Owner’s access to the website at FindSlips' option.
11. Adjustment of Fees. FindSlips may increase or decrease the convenience fees and merchant fees at any time. Any adjustment of Fees shall be deemed delivered to Owner when notice thereof is sent to the email Owner provides FindSlips. Adjustments in Fees shall become effective on the first day of the calendar month next following the month in which notice is provided.
12. Liability and Indemnity. VERY IMPORTANT PLEASE READ CAREFULLY. Owner, as a material part of the consideration to be rendered by FindSlips under this Agreement Fee hereby expressly agrees that:
Owner expressly agrees to assume 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 Slip or any vessel or its appurtenances at the Slip, or for any 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 the Slip, any vessel at the Slip, or Owner’s use of 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 or its agents or employees in connection with the Web Site or FindSlips’ service. 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 Slip, or any vessel that may be located at the Slip, or any Common Areas in or around the subject marina where the Slip or any 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 the Slip or any 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 Slip, a vessel located at the Slip, or the Web Site or FindSlips’ service, shall be expressly limited to no more than $500.00.
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 JAMS (“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 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.
By clicking 'Register', I confirm that I agree with the terms of service.