Last updated: August 24, 2021
Dealer has compiled data into a proprietary database, and the information contained in such proprietary database is referred to in this Addendum as the “Data”. So that Company may provide enhanced data sharing capabilities, Dealer has agreed to provide Company a non-exclusive, irrevocable, perpetual and fully-paid license for access and use to such Data by Company for the sale of new and used boats on the Site, and other related business purposes of the Company.
Company acknowledges that, as between Company and Dealer, Dealer owns all right, title, and interest, including all intellectual property rights, in and to the Data. Company further acknowledges that: (a) the Data is an original compilation protected by United States and/or international copyright laws and (b) the Data constitutes trade secrets of Dealer. Any derivative works created by Company, such as metadata, shall be owned by Company.
Dealer hereby grant to Company the right to grant sublicenses under the license rights granted above to users of the Site. Company’s right to grant sublicenses under this Addendum is subject to the following: only Data, or derivative works of the Data, which are publicly displayed on the Site, including but not limited to photographs, video, written descriptions and specifications (collectively, the “Public Data”), may be included in the sublicense. For the sake of clarity, all other Data, derivative works of Data, or metadata of Data which is not or has not been publicly displayed on the Dealer’s own listings or profile on the Site may not be sublicensed. No sublicensee shall be permitted to use the Data outside the Site for commercial purposes.
Any advertising or lead generation efforts by Dealer is directed exclusively to that Dealer’s listings, and no other. Leads acquired by Dealer are private confidential property of that Dealer. The Company values each Dealer relationship and ensures that each Dealer’s private data and communications remain confidential. For the sake of clarity, a Dealer’s private data is strictly used to generate leads for that particular Dealer and will not be shared with other dealers, nor used to generate leads for other dealers. Company considers the confidentiality of private dealer information of the utmost importance, and will actively monitor and enforce any confidentiality obligations.
USE AND ACCESS
ERRORS AND REMOVAL
Dealer shall provide Company, at no charge, within a reasonable time period and upon written request by the Company, bug fixes, patches, or other error corrections to the Data, each of which constitutes Data and is subject to the terms and conditions of this Addendum. Upon discovery and a reasonable belief of an inadvertent error by either the Dealer or Company of Public Data that Dealer desires to have removed from public display on the Site, Dealer may provide Notice to Company to remove such Public Data (a “Removal Request”). Upon receipt of a Removal Request, Company shall use commercially reasonable efforts to remove the identified Public Data, in all instances, from the Site within 10 business days at no charge. If more than one Removal Request is made per month, due to an error or action by Dealer making available the Data, the parties may negotiate a nominal fee to be paid to Company to cover the costs of additional Removal Requests.
Dealer must have valid ACH information or a valid debit card or credit card on file with Company as an “Authorized Payment Method” in order to receive the Services detailed in the Service Exhibit of the Dealer Agreement. By accepting this Addendum, the Dealer authorizes Company to draw invoiced amounts using the Authorized Payment Method. Customer agrees that all amounts owing are payable in U.S. dollars (unless mutually agreed by the parties). Dealer will pay all fees associated with the Services according to Company’s current pricing information. Unless otherwise agreed to by Company in writing, Dealer agrees to pay all invoices upon receipt and pay for Services in advance. Unless otherwise changed by Company, set up fees will be invoiced on the date on which the Dealer Agreement is signed. A late payment charge of 1.5% per month, or at the highest legal interest rate, if less, on the outstanding unpaid amounts, compounded daily, will be charged on any amounts not received by the due date on the relevant invoice. Dealer agrees to reimburse Company for all amounts expended in collecting past-due accounts, including Company’s reasonable attorneys’ fees and costs.
Dealer understands and agrees to applicable surcharges in addition to the contracted membership rates. Delays in delivering products or services under this Addendum which are due in whole or in part to postponement or delinquency by the Dealer may result in Company billing Dealer in accordance with original advertising dates agreed to or determined by the Dealer.
Notwithstanding anything to the contrary herein, Company may change the Service fees, membership rates and surcharges by notifying Customer via email or other Notice. Changes to Service fees, membership rates and surcharges will be effective upon the earlier of thirty (30) days after notification or the start of the next billing period following notification.
In addition, Company may offer promotional rates on certain Services. Promotional rates are at all times conditioned upon compliance with the terms and conditions of this Addendum and the terms and conditions of the applicable promotion. In the event of any breach of this Addendum or the terms or conditions of the applicable promotion, Company may, upon notice to Dealer via email or in writing, terminate Dealer’s participation in any or all promotional pricing. After the termination or expiration of promotional pricing, the fees, rates and surcharges that were adjusted pursuant to the promotion will, without notice to Dealer, automatically be restored to the then-applicable Company standard fees, rates and surcharges associated with the relevant Services.
All fees and charges hereunder are exclusive of any sales, use, gross receipts, value added, withholding, ad valorem or other taxes, all of which will be Dealer’s responsibility. Dealer will promptly reimburse Company if a taxing authority determines that an additional amount of tax is due relating to the Services.
From time to time during the Term, either Dealer or Company may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder.
Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Addendum, including to make required court filings. On the expiration or termination of this Addendum, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Addendum for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Dealer warrants that: (i) the Data shall not include any virus or other malicious code; (ii) Dealer has obtained and shall maintain all governmental and regulatory licenses, registrations, permits, certifications, and approvals required for the Data; (iii) Dealer has obtained and shall maintain at all times during the term of this Addendum all third-party permissions, rights, and consents required to license the Data as contemplated by this Addendum; and (iv) Dealer will use reasonable efforts to notify Company of errors in the Data.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE DATA IS PROVIDED “AS IS” AND DEALER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. DEALER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
Dealer shall indemnify, defend, and hold harmless Company from and against any and all losses, damages, liabilities, or costs (including reasonable attorneys’ fees) (“Losses”) incurred by Company resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that Company’s use of the Data infringes or misappropriates such third party’s intellectual property rights, provided that Company promptly notifies Dealer in writing of the claim, cooperates with Dealer, and allows Dealer sole authority to control the defense and settlement of such claim.
If such a claim is made or appears possible, Company agrees to permit Dealer, at Dealer’s sole cost and expense, to (A) modify or replace any such infringing part of feature of the Data to make it non-infringing, or (B) obtain rights to continue use. If neither of these alternatives are possible notwithstanding Dealer’s commercially reasonable efforts, Dealer may terminate this Addendum, in its entirety or with respect to the affected part or feature of the Data, effective immediately on written notice to Company, provided that Dealer shall refund or credit to Company all amounts paid by Company in respect of the Data that Company cannot reasonably use as intended under this Addendum.
LIMITATIONS OF LIABILITY
EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS ADDENDUM UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS ADDENDUM, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED TWO TIMES THE TOTAL AMOUNTS PAID TO DEALER UNDER THIS ADDENDUM IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $500, WHICHEVER IS GREATER. The exclusions and limitations in this Section do not apply to claims pursuant to the confidentiality or indemnification Sections.
TERM AND TERMINATION
The term of this Addendum begins on the Effective Date and, unless terminated earlier pursuant to any of this Addendum’s express provisions, will continue in effect in perpetuity (the “Term”). In addition to any other express termination right set forth elsewhere in this Addendum: (i) either party may terminate this Addendum for convenience, for any reason or no reason, upon 30 days prior written notice to the other party; (ii) either party may terminate this Addendum, effective on written notice to the other party, if the other party materially breaches this Addendum, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; or (iii) either party may terminate this Addendum, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Upon expiration or earlier termination of this Addendum, the license granted hereunder will not terminate, though the continued access to the Data under Section 2(d) shall be terminated. Any rights, obligations, or required performance of the parties in this Addendum which, by their express terms or nature and context are intended to survive termination or expiration of this Addendum, will survive any such termination or expiration, including the rights and obligations set forth in this Section, and the confidentiality, indemnification, and miscellaneous Sections.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Addendum (or to such other address that may be designated by each party from time to time in accordance with this Section). The parties shall deliver Notices by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Addendum, a Notice is effective only: (i) upon receipt by the receiving party, and (ii) if the party giving the Notice has complied with the requirements of this Section.
Force Majeure. In no event shall either party be liable to the other party, or be deemed to have breached this Addendum, for any failure or delay in performing its obligations under this Addendum, if and to the extent such failure or delay is caused by or results from the following force majeure events: (i) acts of God; (ii) flood, fire, earthquake, pandemics, epidemics, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect; (vi) national or regional emergency; and (vii) other events beyond the reasonable control of the party.
Amendment and Modification; Waiver. No amendment to or modification of this Addendum is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Addendum, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Addendum will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Severability. If any provision of this Addendum is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Addendum or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify this Addendum so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Governing Law; Submission to Jurisdiction. This Addendum is governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Georgia. Any legal suit, action, or proceeding arising out of or related to this Addendum or the licenses granted hereunder will be instituted in the federal courts of the United States or the courts of the State of Georgia, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Assignment. Neither party may assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned, or delayed; provided, however, that either party may assign its rights or delegate its obligations, in whole or in part, without such consent and upon 30 days prior written notice to the other party, to an entity that acquires all or substantially all of the business or assets of such Party to which this Addendum pertains, whether by merger, reorganization, acquisition, sale, or otherwise. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This Addendum is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.
Export Regulation. The Data may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Company shall not, directly or indirectly, export, re-export, or release the Data to, or make the Data accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Company shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Data available outside the US.
Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under the confidentiality Section would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
In order to resolve a complaint regarding the site or the Marketplace Offerings or to receive further information regarding use of the site or the Marketplace Offerings, please contact us at:
Boats for Sale
696 N 1st Avenue,Suite 305
St. Petersburg, FL 33701
Phone: (+1) 833-466-2628