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 133 Brookview Ave, Fairfield, CT 06825, 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.co.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. Limitation of Liabilities
a. 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.
b. 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.
c. 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.
d. 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.
e. 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.
f. 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.
11. Account Registration and Terms
a. 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.
b. When you register, you must choose a user name 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.
c. 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 user name 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 user name that does not closely relate to a user’s actual name).
e. 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.
f. 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.
g. 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.\
h. You must be a human. Accounts registered by “bots” or other automated methods are not permitted.
i. You agree to comply with such technical requirements as may be published by Boat Fix from time to time.
j. You agree not to allow the Service to be placed on any third party web site.
k. 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.
12. Limitations of Use:
- a. 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).
- c. 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.
- d. 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.
13. Materials and Content
- a. 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.
- b. 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.
- c. 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.
- d. 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.
- e. 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.
- f. 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.
- g. 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.
- h. 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.
14. 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.
15. 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.
17. General Conditions:
- a. 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.
- b. 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).
- c. 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.
- d. 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.
- e. 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.
- f. 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.
- g. 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.
- h. 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.