1. Welcome to the Boatracs’ Inland Express / Offshore Express Vessel Management System (the "Service"). Boatracs, LLC (the "Provider") provides the Service pursuant to the Terms and Conditions set forth below. By clicking on the [Submit] button, you are agreeing to use the Service in a manner consistent with the Terms and Conditions of this Agreement and with all applicable laws and regulations. The Provider may modify this Agreement at any time.
2. USER CONDUCT. You agree that you and any other persons or entities that provide their data for you to access (e.g. a boat) are solely responsible for the content of your account, and you further acknowledge that the Provider acts as a passive conduit for the storage of data. You represent and warrant that the content you provide to the Provider: (a) does not infringe on any third party's intellectual property or proprietary rights, or rights of publicity or privacy; (b) does not violate any law, statute, ordinance or regulation; (c) is not defamatory, trade libelous, threatening, abusive, pornographic or obscene; (d) does not contain viruses or other similar harmful or deleterious programming routines; and (e) does not contain links to any such sites referenced above. If you violate any aspect of this provision you may be penalized up to and including loss of the Service and any other remedies available to the Provider by law.
3. PRIVACY. The Provider considers the content of all databases to be private. Except as provided in the master “Subscription Agreement for Application (Boatracs) Service”, the Provider will not intentionally monitor or disclose any data entered unless required by law. Additionally, you agree to respect the privacy and confidentiality of others. Since User privacy is a function of your password, the Provider encourages Users to change passwords frequently and further not to share the password with any third party.
4. USE PURPOSE. You agree not to resell or make any commercial use of the Service without the express written consent of the Provider and you agree to be fully liable for the use of your account, including any unauthorized use of your account by a third party.
5. INDEMNIFICATION. You agree to defend, indemnify and hold harmless the Provider, its employees, directors, officers, agents and their successors and assigns from and against any and all liabilities, damages, losses, costs and expenses, including attorney's fees, caused by or arising out of claims based upon the use of your account, including but not limited to any claim of libel, defamation, violation of rights of privacy or publicity, loss of service and infringement of intellectual property or other rights.
6. TERM. This Agreement shall continue in full force and effect for so long as you are using the Service. Either Customer Administrator or the Provider may terminate the Service at any time, subject to the terms in the master Subscription Agreement for Vessel Management Systems with or without cause. The provisions of Sections 1, 5, 7, 8 and 10 shall survive any such termination.
7. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE PROVIDER MAKES NO WARRANTY THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES THE PROVIDER MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED THROUGH THE SERVICE OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. YOU UNDERSTAND AND AGREE ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEMS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. THE PROVIDER MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, WHICH YOU OBTAIN FROM THE PROVIDER OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
8. LIMITATION OF LIABILITY. THE PROVIDER SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OF LIABILITY SO THE FOREGOING MAY NOT APPLY TO YOU. YOU ALSO AGREE THAT YOUR SOLE REMEDY UNDER THE TERMS AND CONDITIONS OF THIS AGREEMENT IS CANCELLATION OF THE SERVICE.
9. DATA STORAGE. The Provider may limit of the size of storage space. All User accounts with past due invoices for a period of more than ninety (90) days will be classified as inactive ("Inactive Account"). The Provider, in its sole discretion, may delete any existing data from Inactive Accounts and usage of the Vessel Management System may be refused.
10. MISCELLANEOUS. This Agreement shall be governed by and construed in accordance with the laws of the State of California without giving effect to principles of conflict of laws. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. The Provider's failure to act with respect to a breach by a User does not waive its right to act with respect to subsequent or similar breaches.