For consideration of utilizing the services of SHARE A FISHING CHARTER, LLC, a Florida limited liability company (the "Company") and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Captain (as hereinafter defined) agrees to the terms and conditions of this Agreement ("Agreement") as provided below and to other terms and conditions applicable to Captain under this Agreement, the Angler Agreement (as hereinafter defined) or the terms and conditions set forth in the Company's website, all of which are incorporated herein by reference. The foregoing Agreements and terms and conditions may be amended from time to time in the sole discretion of the Company. Captain acknowledges that it has had the opportunity to review this Agreement below and it has had the opportunity to seek legal counsel regarding the effect of this Agreement prior to offering charter fishing services through the Company's web site. The Company and Captain may also be referred to herein as "Party" or "Parties".
If Captain does not agree to all of the terms and conditions of this Agreement, Captain must not use the Company's services or website. The Company reserves the right to deny use or refuse to provide services to any Captain at any time for any reason. Failure to comply with the terms and conditions of this Agreement may result in denial of access to the Company's website or access to any other services provided by the Company and cancellation of Captain's account.
This Agreement contains terms and conditions that are legally binding upon the Captain. Company strongly encourages Captain to seek independent legal and tax counsel before agreeing to be bound by the terms and conditions of this Agreement.
1. PRECEDENCE OF THIS AGREEMENT AND ACCEPTANCE.
1.1 Precedence of this Agreement. The Parties' relationship under this Agreement is governed by the provisions of this Agreement and the terms and conditions set forth on the Company's website, except that the terms of this Agreement take precedence over any conflicting or contradictory provisions.
1.2 Acceptance. Captain accepts the terms and conditions of this Agreement by: (i) clicking to accept or agree to the terms and conditions, where this option is made available by Company in the user interface for any services provided by Company; or, (ii) by actually using any service provided by the Company. In the case of (ii), Captain understands and agrees that its use of any service constitutes and denotes acceptance of this Agreement, including all of its terms and conditions, as may be subsequently amended by the Company in its sole discretion.
2. OWNERSHIP OF CONTENT.
2.1 This Site Is Owned and Operated by the Company. All content on this Site is the copyrighted property of the Company or a third party, and the Company, on behalf of itself and any third party owners of content on this site, reserves all rights with respect to that content. Neither this site nor any of the content found on this site may be reproduced, republished, distributed, sold, transferred, licensed, displayed, modified, or framed without the express written permission of the Company and/or the third party owners of such content. Trademarks, logos, and service marks displayed on this site are registered and common law trademarks and service marks of the Company, its affiliates, and various third parties. Nothing contained on this site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark, logo, or service mark without the express written consent of its owner.
3. USE OF SITE.
3.1 Obligations of the Company.
(a) Operation of Services. Company will use commercially reasonable efforts to ensure that interfaces between Captain and Anglers for Company services are available without interruption, except for any maintenance and interruptions which are outside the control of the Company.
(b) Display of Captain Information. Captain shall provide its information to the Company. Company shall accurately reproduce, display and transmit Captain's information on its website. Captain shall have the right to review and have changes made to Captain's information at any time. Company shall not have responsibility for any inaccuracy or incompleteness in the information provided by Captain. Captain indemnifies Company for failing to provide accurate and complete information in accordance with Section 11 below. Each Party will notify the other Party promptly if it discovers that Captain's information on the Company website is inaccurate or incomplete and the Parties will cooperate with each other to make the appropriate corrections as soon as practicable.
3.2 Obligations of the Captain.
(a) Registration. Prior to using any service of the Company, Captain shall register on the Company's website, and perform all actions necessary to comply with the Company website registration requirements and the terms and conditions of this Agreement and all other terms and conditions of Captain as set forth on the Company's website, as amended from time to time in the sole discretion of the Company. Captain shall maintain current and accurate contact information to the Company including, by way of illustration and not limitation, phone (land and phone) and facsimile numbers, email address and address for mail.
(b) Pricing and Terms.
(i) Captain is responsible for transmitting accurate charter information and pricing data, including all taxes, fees and charges (whether imposed by a governmental authority or Captain) that may apply to the charter services being offered for sale. Captain shall also be responsible for maintaining and overseeing all of Captain's contracts with Anglers, and resolving all disputes between Captain and Anglers. Captain will comply with applicable legal, regulatory, and other requirements related to the display, pricing and sale terms of its services and reservations.
(ii) Captain agrees that Company may determine at its sole discretion the amount of the increase in charter prices uploaded by Captain in the Captain to the Company website. Captain shall not be entitled to any portion of Company's pricing increases. Compensation to Captain shall be based solely upon the pricing information provided by Captain to the Company through the Company's website.
(c) Complaints. If an Angler submits a complaint to Company or Captain, Captain shall in good faith attempt to resolve the complaint as soon as practicable following Captain's receipt of the complaint. Each Party shall promptly notify the other Party regarding any complaint relating to a reservation received in accordance with the notice procedures set forth in Section 12.9 hereto or as otherwise mutually agreed between the Parties.
(d) Confirmation of Reservation. Upon confirmation of a reservation, the Company shall timely transmit details of the reservation to Captain via e-mail to the email address most recently provided by Captain. Once a reservation has been confirmed to proceed with charter completion, Captain is responsible for providing charter services as advertised to Angler, and shall be responsible for immediately communicating cancellations or delays to the Company.
(e) Angler Support. After the Company has confirmed a reservation by an Angler, Company shall have primary responsibility for communications with Angler relating to reservations made with Captain through Company website and all other matters related to the transaction between Captain and Angler. Captain shall have secondary responsibility and shall work with Company as appropriate to help resolve such matters. Company shall have primary responsibility, and shall work directly with Captain and/or Angler, to resolve issues that involve Company's technology or e-commerce service offerings.
(f) Technical Support; System Down-Time. Captain agrees to make available to Company any and all of Captain's technical resources reasonably necessary to implement and maintain the interface between Company and Captain under this Agreement. Captain will use commercially reasonable efforts to ensure the availability of its systems for use with the interface, subject to scheduled down time, necessary service interruptions and conditions outside of Captain's control.
(g) Liability Policies. Captain shall maintain reasonably appropriate insurance policies governing disputes with Anglers and other transaction requirements in a form reasonably acceptable to Company. Captain agrees to provide its insurance policies to Company upon request. Such insurance policies shall include, by way of illustration and not limitation, general liability for damage to property of the Angler and Captain and bodily injury of Angler and the employees or independent contractors of Captain in amounts as determined by the Company from time to time.
4. REPRESENTATIONS AND WARRANTIES BY CAPTAIN.
By accepting the terms and provisions of this Agreement and creating an account using the Company website, Captain represents and warrants that:
4.1 Captain possesses the requisite licenses and authorizations to provide charter fishing services to Anglers;
(a) There is no pending or threatened litigation, investigation or enforcement action against Captain by any third party including any government agency. Captain shall immediately notify Company in writing if any such investigation, enforcement action or litigation is initiated or threatened;
(b) Captain holds and agrees to maintain insurance of the type and amount required, including any local, state or federally mandated insurance, by Company.
(c) Captain's equipment is in good and working condition. Such equipment shall include, by way of illustration and not limitation, its vessel, tackle and dock.
(d) Captain represents and warrants to Company that it has full legal authority to enter into this Agreement and that the execution, delivery and performance of this Agreement does not conflict with or cause any default or breach (either immediately or with the passage of time or notice) under any other agreement, instrument or other obligation of Captain.
Company reserves the right to verify Captain's licenses as well as any and all other licenses, insurance, and regulatory clearances required to operate a charter. Captain shall immediately submit to Company proof of insurance, licenses, certifications, or regulatory clearances at Company's request. Failure to submit any required materials may result in the immediate cancellation by Company of this Agreement and Captain's right to utilize the Company's services. Captain indemnifies Company and its owners, offices, managers, agents and representatives, against any claims arising from breach or misrepresentation (by act or omission) of Captain's representations and warranties, in accordance with Section 11 of this Agreement.
5.1 Fees. Captain is not being charge an initiation or membership fee, but the Company reserves the right to charge such fees in the future.
5.2 Payment Terms. Payment for reservations will be delivered by Company to Captain within seven (7) or less business days subsequent to completion of confirmed charter trips. Captain shall send confirmation to Company via finalize payment button upon trip completion using the Captain's account on the Company's website. Company will send payment to Captain via electronic transfer, or via check sent to Captain's place of business using First Class mail. Captain shall not be entitled to any payment for a charter until the trip is completed and Captain has notified Company of its completion through the Company's website. In the event of trip cancellation, Company shall be responsible for issuing refunds to Anglers.
6. CANCELLATION AND REFUND POLICIES.
6.1 Cancellation Policy for Captains.
(a) Mechanical & Safety - If the Captain cancels a fishing trip for any reason other than weather, the Company will work with the Captain to transfer the angler to another boat of comparable value whenever possible. If this is not possible, we will provide a credit to the angler account.
(b) Weather Related - If the Captain cancels for due to bad weather or an Act of God, the Angler's deposit will be credited to his or her account for a period of up to one (1) year. If the Captain cancels for due to bad weather or an Act of God within 24 hours of the originally scheduled fishing trip date and time, the Angler's ticket balance will be refunded back to them as well.
6.2 Mid-Charter Cancellations
(a) Unsafe Conditions - In the event the Captain decides while leaving the marina that it is not safe to fish, you will return to the dock and receive a full credit or refund. If you are fishing and the Captain has to terminate the trip due to deteriorating weather conditions, Anglers will be responsible for 25% of the total ticket value for each hour that you are fishing.
(b) Sea Sickness & Other Angler Related Issues - If you become ill due to sea sickness, the captain may take a vote on whether to return to the marina early. If the majority of the charter decides to return to the dock/marina due to certain elements (i.e., sea sickness), no refunds or credits are available to the angler who is ill. If you are affected by another angler, and the Captain is willing, you can take the charter back out. If you or the Captain disagrees for any reason, we are happy to offer you a discount on your next charter.
7. INVOLVEMENT BY COMPANY.
Company only provides a medium for Anglers to retain the services of Captain for a fishing charter. Company is not a party to any actual agreement or transaction between Anglers and Captains. As a result, Company has no control over the accuracy of the content or information provided or used by such Captains and Anglers. Captain is solely responsible for communicating its terms and conditions of travel to Anglers. In the event of a dispute between Captain and any Angler, Captain hereby releases and holds Company and its owners, managers, agents and employees harmless from claims, costs, demands and damages (actual and consequential) of every kind and nature including without limitation reasonable attorneys' fees, known and unknown, arising out of or in any way connected with such disputes in accordance with Section 18 below.
8. TERM AND TERMINATION.
8.1 Term. Unless terminated by Company, this Agreement remains in full force and effect as long as Captain continues to use Company's services. Company reserves the right to change the terms and conditions governing the relations between the Company and Captain and between the Company and Anglers at any time. Company's publication of any such changes and updates on Company's website shall constitute constructive notice to Captain regarding such changes and updates. Captain shall be responsible to review the Company's website from time to time to determine any changes to terms and conditions governing the relationship between the Captain and the Company and between Anglers and the Company.
8.2 Termination. Either Party may terminate this Agreement at any time for any reason by providing the other Party written notice. In addition, termination shall occur when Captain discontinues use of Company's services. Captain and Company agree that Company has the right to terminate this Agreement for any reason. In the event of termination, Company shall deliver any unpaid funds owed to Captain within ten (10) days or less of termination in the manner provided in Section 5.2.
8.3 Captain's Service Obligations after Termination. Upon termination of this Agreement for any reason, Captain shall provide all services to complete charters that have been reserved for the thirty (30) day period following termination. Compensation payable to Captain for the charters provided during the thirty (30) day period shall be paid in accordance with the terms and provisions of Section 5 above.
9. CONFIDENTIALITY INFORMATION.
9.1 Confidential Information Defined. For purposes of this Agreement, "Confidential Information," means any information with respect to the present and prospective businesses, services, pricing, products, intellectual property, software, processes, trade secrets, finances, technologies, systems, customers, vendors, sales, marketing and service methods, transportation, shipping, data, systems, employees, contracts, and other information of the Company, and of any affiliate of the Company to the extent that information is made available to Captain, including, but not limited to: transactional data, Angler information, product and service information, processing methods, management procedures and systems; analyses, compilations and reports, sales information, cost information, market research, advertising strategy, strategic, marketing and business plans, customer information, lists and contacts, pricing financial statements and reports; vendor information; direct and indirect costs and structures, proposals, employee information, organization charts and individual assignments; and special techniques or methods of any kind peculiar to the Company, any affiliate of the Company or their respective Anglers. Confidential Information also includes any other information that is marked "confidential" or "proprietary" at the time of disclosure or, if disclosed orally, is identified as "confidential" or "proprietary" at the time of disclosure and is summarized in a writing sent by the Company to the Captain at the time of disclosure or within thirty (30) days after disclosure. The preceding sentence does not require all Confidential Information to be marked or identified as "Confidential" or "Proprietary;" on the contrary, all information disclosed in the course of exploring the business purpose that fits into the definitions in this paragraph constitutes Confidential Information. All of the foregoing information, whether oral or written, furnished to a party or any affiliate of a party, together with analyses, compilations, studies, notes of conversations, or other documents prepared for or by a party or its directors, officers, shareholders, owners, principals, employees, agents or other representatives (hereinafter collectively referred to as "Representatives" that contain Confidential Information is also included within the term "Confidential Information." All Confidential Information is provided by the Company "AS IS" and the Company makes no warranties about the information.
9.2 Exceptions. Confidential Information will not include: (i) information which is or becomes in the public domain without breach of this Agreement or already possessed by Captain as demonstrated by written or other tangible evidence; (ii) information disclosed to Captain by a third party who has an independent right to such information; (iii) information that Captain develops independently or through agents or contractors not having access to the Confidential Information; and (iv) information required to be disclosed by law, regulation, or governmental or judicial order, provided that the party required to make a disclosure under this section uses reasonable efforts to give the other party reasonable advance notice of the required disclosure in order to enable the other party to prevent or limit the disclosure.
9.3 Confidentiality. The Captain agrees: (i) to maintain the Company's Confidential Information in strict confidence; (ii) not to disclose the Confidential Information to any other persons; and (iii) not to use any Confidential Information for any purpose except for purposes of carrying out the business purpose of this Agreement. For purposes of this Agreement, the Confidential Information of the Company's vendors and customers shall be treated as the Confidential Information of the Company. The Captain may disclose the Confidential Information of the Company to its employees and consultants who have a bona fide need to know the Confidential Information for the business purpose hereunder, but solely to the extent necessary to pursue the business purpose hereunder and for no other purpose; provided that each of the receiving employees and consultants first execute a written agreement (or is otherwise bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the Company's Confidential Information as those set forth in this Agreement.
9.4 Injunctive Relief. The Captain acknowledges that (i) the Company's Confidential Information is a valuable, special and unique asset belonging exclusively to the Company and that the Confidential Information must be protected in order for the Company to obtain and retain current and prospective customers and suppliers and to maintain valuable business relationships with third parties, (ii) the unauthorized use or disclosure of the Company's Confidential Information would cause the Company to incur irreparable harm and significant damages, the degree of which may be difficult to ascertain, and (iii) the Captain acknowledges that the remedy at law for any breach or threatened breach of the provisions set forth in this Agreement by the Captain may be inadequate and that the Company shall be entitled to injunctive relief and/or restraining orders as well as any other remedy available at law or in equity.
9.5 Return of Information. Upon the request of the Company, Captain shall return to the Company all written or descriptive Confidential Information, including, but not limited to, notes, drawings, blueprints, descriptions or other papers or documents containing any proprietary information of the Company, and shall retain no copies of the Confidential Information or, at the sole option and request of the Company, the Captain shall destroy the written or descriptive matter and certify to the Company that destruction has taken place.
10. USE OF COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY.
10.1 The Company website contains or may contain copyright material, trade names and marks and other proprietary information, including, but not limited to, text, software, photos and graphics, video, music, "look and feel", and sound. This content of the website is protected by copyright law, registered and unregistered trademarks, database rights and other intellectual property rights.
10.2 Company owns the copyright, database rights and other intellectual property rights in the selection, coordination, arrangement and enhancement of the Company's website and its content, whether current or previously contained therein. Captain may not modify, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit, the Company's website or any of its content, except as provided herein.
10.3 Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without Company's express permission or that of the copyright owner. In the event that Captain engages in any permitted copying, redistribution or publication of copyright material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. Captain acknowledges that it does not acquire any ownership rights by downloading copyright material.
10.4 Where Captain elects, or is invited, to submit any informational material to the Company website (including any text, photographs, graphics, video, audio or logo) or otherwise consent to the use of these informational materials, then by submitting the materials or consenting to their use, Captain grants Company a perpetual, royalty-free, non-exclusive license and right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, play, make available to the public, and exercise all copyright and publicity rights with respect to Captain's informational materials worldwide and/or to incorporate Captain's materials in other works in any media now known or later developed for the full term of any rights that may exist in Captain's informational materials. If Captain does not want to grant to Company the rights set out above, Captain shall not submit informational materials to the Company website. Company shall have no liability to Captain for any use or misuse by any third party of any informational materials that are distributed through the Company's website or in respect of any infringement of the intellectual property rights in any informational materials by any third party.
10.5 By submitting its information to the Company website, Captain:
(a) warrants and represents that its informational materials:
(i) are its own original work or that Captain has the right to make it available to Company for all the purposes specified above and that it does not breach or infringe anyone else's rights such as copyright or is in any way illegal;
(ii) are not fraudulent or criminal; and
(iii) will not and do not contravene any relevant local, national or international law, regulation or ordinance or incite or encourage the contravention of any such law, regulation or ordinance.
(b) agrees to indemnify and keep Company and its owners, managers, officers, agents and employees indemnified against all legal fees, damages and other expenses that may be incurred by them in accordance with Section 11 below as a result of Captain's breach of the above warranty; and
(c) agrees to waive any moral rights in the information provided by Captain for the purpose of its submission to and publication on the Company's website and the purposes specified above to the fullest extent permitted by law.
10.6 Company reserves the right to individually identify Captain and provide any information provided by Captain to the Company in response to a court order or threat of legal action.
10.7 Captain shall immediately notify the Company if it sees any information on Company's website that breaches Captain's or anyone else's rights or may be illegal or otherwise should be removed. Such notification shall be in accordance with Section 10.11 below. Where Company agrees, Company shall do its best to remove such information as soon as possible.
10.8 Company reserves the right to remove any informational material from the Company website (including any text, photographs, graphics, video, audio or logo) at any time and without notice and shall not be obliged to give a reason for doing so. In the event that Company removes any informational materials from the Company website, Company shall in no way be liable for any loss, liability, cost or expense suffered by Captain as a result (whether direct or indirect) of such removal.
10.9 Company reserves the right, but not the obligation, to edit, delete or use electronic methods to block or filter any informational materials posted to or sent to the Company website at Company's discretion, including without limitation any message that contravenes any of these terms and conditions governing the relationship between Captain and Company.
10.10 Captain must not use the Company website in any manner that could cause issues with the performance of the website. Such issues shall include, but not be limited to, viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful. Captain must not attempt to gain unauthorized access to the Company website, the server on which the Company website is stored or any server, computer or database connected to the Company website. Captain must not attack the Company website via a denial-of-service attack or a distributed denial-of service attack. Company shall not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other malicious technologically harmful material that may infect Captain's computer equipment, computer programs, data or other proprietary material due to Captain's use of the Company website or to Captain's downloading of any material posted on the Company website, or on any website linked to it.
10.11 Where Company creates a link from the Company website to any website operated by Captain, Company shall have the right to remove such link at any time without obtaining Captain's prior consent. In the event that Company removes a link from the Company website to any web site operated by Captain, Company shall in no way be liable for any loss, liability, cost or expense suffered by Captain as a result (whether direct or indirect) of such removal, including, without limitation to the foregoing generality, where such loss, liability, cost or expense results from a loss of search engine positioning, ranking, placement or optimization.
If you believe that your work has been copied and posted on our site in a way that constitutes copyright infringement, you should provide the Company with a written notice that sets forth the infringement details.
The Company reserves the right, in appropriate circumstances and at our discretion, to terminate the privileges of any Captain who repeatedly infringes the copyrights or other intellectual property rights of the Company or others.
Please send the written communication to our Copyright Agent at the following address:
R. John Nadjafi, Esq. - Copyright Agent
Shutts & Bowen LLP
100 South Orange Avenue, Suite 1000
Orlando, Florida 32801
You may also access contact information for the Company's Registered DMCA Agent via the United States Copyright Office's website here:
11. SUBPOENA POLICY.
The Company accepts subpoenas that are properly issued pursuant to Federal Rule of Civil Procedure 45 and applicable state laws.
For all properly issued subpoenas, service should be made upon our registered agent:
R. John Nadjafi, Esq. - Copyright Agent
Shutts & Bowen LLP
100 South Orange Avenue, Suite 1000
Orlando, Florida 32801
Upon receipt of a valid subpoena, it is the Company's policy to promptly send notification to the account holder whose information is sought. The Company will not produce the subpoenaed account holder information until 10 days after the account holder has been notified, so that the account holder whose information is sought will have adequate opportunity take appropriate legal action, should the account holder wish to do so. The Company will issue invoices for the costs associated with subpoena compliance. We charge $105.00 per hour for research and administrative costs, $16.00 per overnight mail and 25 cents per copy. The Company will invoice the subpoenaing party prior to production, and payment must be made prior to the production of the subpoenaed information.
12. NON-COMPETITION, NON-SOLICITATION AND NON-DISPARAGEMENT
As an inducement for Company to allow Captain to register with the Company and be included in the Company's website, Captain agrees that:
(a) Commencing with the date that Captain commences to use the services of the Company as evidenced by Captain's registration on the Company's website and for a period of two (2) years from the termination of this Agreement:
(i) Captain will not, directly or indirectly, engage or invest in, own, manage, operate, finance, control, or participate in the ownership, management, operation, financing, or control of, be employed by, associated with, or in any manner connected with, lend Company's name or any similar name to, lend Company's credit to, or render services or advice to, any business whose products or activities compete in whole or in part with the products or activities of the Company within fifty (50) mile where Company has been involved in a charter within the previous one (1) year period. Company agrees that this covenant is reasonable with respect to its duration, geographical area, and scope.
(ii) Captain will not, directly or indirectly, either for itself or any other Person, (A) induce or attempt to induce any employee of the Company to leave the employ of the Company, (B) in any way interfere with the relationship between the Company and any employee of such the Company, (C) employ, or otherwise engage as an employee, independent contractor, or otherwise, any employee of the Company, or (D) induce or attempt to induce any Angler, captain, licensee, or business relation of the Company to cease doing business with such Company, or in any way interfere with the relationship between any Angler, captain, licensee, or business relation of the Company.
(iii) Captain will not, directly or indirectly, either for itself or any other Person, solicit the business of any Person known to Captain to be a Angler of the Company, whether or not Captain had personal contact with such Person, with respect to products or activities which compete in whole or in part with the products or activities of the Company;
(b) In the event of a breach by Captain of any covenant set forth in Subsection 10(a) of this Agreement, the term of such covenant will be extended by the period of the duration of such breach;
(c) Captain will not, at any time during or after the five (5) year period described above, disparage the Company or its owners, managers, officers, agents or employees or if assigned to an entity prior to or after Closing any of such entity's owners, directors, officers, managers, employees, or agents; and
(d) Captain will, for a period of two (2) years after termination of this Agreement, within ten (10) days after accepting any employment related to the charter industry, advise Company of the identity of any employer of Captain. Company may serve notice upon each such employer that Captain is bound by this Agreement and furnish each such employer with a copy of this Agreement or relevant portions thereof.
(e) If any of the covenants set forth in this Agreement are held to be unreasonable, arbitrary, or against public policy, such covenants will be considered divisible with respect to scope, time, and geographic area, and in such lesser scope, time and geographic area, will be effective, binding and enforceable against Captain.
Captain (the "Indemnifying Party") shall defend and indemnify Company and its owners, managers, officers, directors, agents and employees (the "Indemnified Party") against any and all claims, losses, costs and expenses, including reasonable attorneys' fees, that the Indemnified Party may incur as a result of claims in any form by third parties arising from: (a) the Indemnifying Party's tortious or negligent acts or omissions (including, without limitation, noncompliance with any applicable legal and/or regulatory requirements); (b) the Indemnifying Party's breach of any representation, warranty or covenant set forth herein; (c) the infringement of any third party's intellectual property by any trademarks or other intellectual property provided by the Indemnifying Party to the Indemnified Party; and (d) the Indemnifying Party's failure to collect all taxes, fees and charges that may be applicable to the air travel services being offered for sale by the Indemnifying Party.
14. LIMITATION OF LIABILITY.
THE COMPANY AND ITS AFFILIATES ASSUME NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO YOU OR YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY AS A RESULT OF YOUR USE OF OR ACCESS TO SHAREAFISHINGCHARTER.COM OR ANY OTHER SITE OWNED BY OR RELATED TO THE BUSINESS OF THE COMPANY. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL THE COMPANY OR ITS AFFILIATES HAVE ANY RESPONSIBILITY OR LIABILITY FOR INACCURACIES OR TYPOGRAPHICAL ERRORS IN ANY INFORMATION CONTAINED ON THIS SITE, ANY FAILURES OR DELAYS IN SERVICE ON THIS SITE, ANY COMPUTER VIRUSES OBTAINED OR PASSED THROUGH USE OF THE SITE, OR ANY OTHER LOSSES OR DAMAGES ARISING FROM OR RELATING TO YOUR USE OF OR ACCESS TO THIS SITE. IN NO EVENT SHALL THE COMPANY OR ITS AFFILIATES BE LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE, OR SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO LOST PROFITS OR LOST SAVINGS), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, WHICH ARISE OUT OF OR ARE IN ANY WAY CONNECTED WITH (A) ANY USE OF THIS SITE OR ITS CONTENT, OR (B) THE PERFORMANCE OR NON PERFORMANCE BY THE COMPANY OR ANY THIRD PARTY PROVIDERS, REGARDLESS OF WHETHER THE PARTY SOUGHT TO BE HELD LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, ANY SUCH EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU.
15. DISCLAIMER OF WARRANTIES.
THE COMPANY AND ITS AFFILIATES MAKE NO WARRANTY OF ANY KIND REGARDING THIS SITE AND/OR ITS CONTENT, ALL OF WHICH ARE PROVIDED ON AN "AS IS" BASIS. THE COMPANY AND ITS AFFILIATES DO NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENCY, OR RELIABILITY OF ANY OF CONTENT ON THIS SITE AND EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS, INCLUDING IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO SUCH DISCLAIMER MAY NOT APPLY TO YOU.
17. LINKS TO OTHER SITES.
This site contains links to other web sites ("Links"). All Links are provided solely as a convenience to you, and not as an endorsement by the Company or its affiliates of any other web site or content contained thereon. Neither the Company nor its affiliates shall have any liability or responsibility for, or be deemed to make any representation or warranty with respect to, the content of any other web site by virtue of the inclusion of Links on this site or otherwise.
18. GENERAL PROVISIONS.
18.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between the parties hereto with respect thereto. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the parties other than as expressly set forth in this Agreement.
18.2 Dispute Resolution. In the event of a dispute between the Parties, the Parties shall use their best efforts to resolve the issue causing the deadlock through mediation for a period of thirty (30) days. In the event the dispute is not resolved by expiration of such thirty (30) day period, the issue causing dispute shall be submitted to court of competent jurisdiction for resolution.
18.3 Assignment. Captain may not assign its rights, duties and obligation hereunder without the prior written consent of Company. Company may assign its rights, duties and obligations without the consent of Captain.
18.4 Binding Agreement. This Agreement shall inure to the benefit of and be binding upon the respective heirs, executors, administrators, successors and permitted assigns of the parties hereto.
18.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida.
18.6 Prevailing Party Fees and Costs. In connection with any litigation, action, suit or dispute including, appellate proceedings, arising out of or in any manner relating to this Agreement, the prevailing party shall be entitled to recover all costs and expenses, including but not limited to, reasonable attorney's fees and costs.
18.7 Venue. The parties agree that any suit, action or legal proceeding arising out of or relating to this Agreement shall be brought in the courts of record of the State of Florida in Palm Beach County and that each party consents to the jurisdiction of such court in any suit, action or proceeding. Each party further waives any objection which it may have to the laying of venue of any such suit, action or proceeding in any of such courts. This provision shall survive the termination of this Agreement.
18.8 Severability. If any part of this Agreement will be determined to be invalid, illegal or unenforceable by any valid Act of Congress or act of any legislature or by any regulation duly promulgated by the United States or a state acting in accordance with the law, or declared null and void by any court of competent jurisdiction, then such part will be reformed, if possible, to conform to the law and, in any event, the remaining parts of this Agreement will be fully effective and operative insofar as reasonably possible.
18.9 Notices. All notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt), (b) sent by facsimile (with written confirmation of receipt), provided that a copy is mailed by registered mail, return receipt requested, or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties):
Share A Fishing Charter, LLC
980 N Federal Highway – Suite 110
Boca Raton, FL. 33432
18.10 Independent Contractors. The Parties' relationship hereunder is that of independent contractors. This Agreement does not create any employment, agency, franchise, joint venture, partnership or other similar legal relationship between the Parties. Neither Party has the authority to bind or act on behalf of the other Party except as otherwise specifically stated herein.
18.11 Force Majeure. The obligations of either Party to perform under this Agreement will be excused during each period of delay or default if such delay or default is caused by conditions or events beyond the nonperforming Party's reasonable control and occurring without its fault or negligence, including, but not limited to, Acts of God, natural disasters, wars, riots or other major upheaval, labor strikes, shortages of power or materials, general failure of the internet, hacker or virus attack, government orders, disruptions in telephone service attributable to the telephone company or labor actions by employees of a common carrier, or damage or destruction of any network facilities or servers. Upon occurrence of a Force Majeure event, the nonperforming Party shall promptly notify the other Party of the occurrence of that Force Majeure event, its effect on performance, and how long that Party expects it to last. Thereafter, the nonperforming Party shall update that information as reasonably necessary. During a Force Majeure event, the nonperforming Party shall use reasonable efforts to limit damages to the other Party and to resume its performance under this Agreement.
18.12 Headings. The descriptive headings of the sections of this Agreement are inserted for convenience only and will not control or affect the meaning or construction of any provision hereof.
18.13 Controlling Document. In the event of any conflict between this Agreement and any document, instrument or agreement prepared by either Party, the terms and conditions of this Agreement shall control.
(a) "Captain" means any Person that uploads charter reservation and any related information to the Company's website for the purposes of offering charter services for sale through the Company's website.
(b) "Company website" means the World Wide Web site owned by Company and which has the URL www.shareafishingcharter.com and any and all other web sites owned or operated by Company on which Company offers online e-commerce services.
(c) "Angler" means a person or organization that purchases a reservation from Captain using Company's services.
(d) "Person" means and includes an individual, corporation, partnership, association, limited liability company, trust, estate, or other entity.