RECREATIONAL USER SERVICE AGREEMENT
TERMS AND CONDITIONS
This Recreational User Service Agreement (the "Agreement") is entered into by and between Siren Marine, Inc., a Delaware corporation doing business as “Skipperi" (“Skipperi” or “Company”), and the individual who subscribes to the Service provided hereunder (the "User", "you" or "your"). Skipperi and the User may also hereinafter be referred to, collectively, as the "Parties" or each individually as a "Party".
IMPORTANT AUTO-RENEWAL DISCLOSURE: THIS AGREEMENT AUTOMATICALLY RENEWS FOR SUCCESSIVE 12-MONTH MEMBERSHIP TERMS UNLESS USER CANCELS NO LATER THAN THREE (3) MONTHS BEFORE THE NEXT RENEWAL DATE. BY ENTERING INTO THIS AGREEMENT, USER EXPRESSLY CONSENTS TO RECURRING CHARGES TO THE PAYMENT METHOD ON FILE FOR ALL FEES AND OTHER AMOUNTS DUE UNDER THIS AGREEMENT UNTIL THIS AGREEMENT IS CANCELED OR TERMINATED.
SKIPPERI’S SERVICES
The Service offered by Skipperi to the User is a boating service mobile application and related services (collectively, the “Application”) that facilitates the User’s reservation and use of boats made available through the Application. For purposes of this Agreement, “Operator” means the local fleet partner that owns and/or operates a Boat made available through the Application. Each Operator lists boats available for rental (“Boats”) on the Application for rent to the User on a bareboat basis via the terms and conditions contained hereinbelow. For purposes of this Agreement, the term “rental” is interchangeable with the term “bareboat charter.” The User also has access to Website-based boat training courses and resources during the term of the Agreement.
Skipperi acts as a service provider to process rental transactions for the Boats listed on the Application, issue invoices, and collect payment for such Rentals, and assist Operators in the receipt and processing of User’s claims.
Skipperi is not the owner, operator, broker, manager, repairer, renter, or licensor of any of the Boats listed on the Application and Skipperi possesses no legal interest in any of the Boats listed on the Application. Skipperi’s responsibilities are limited to facilitating the availability of the Application and serving in the limited capacity as a pay agent for the Operators.
Skipperi’s Terms of Use and Skipperi's Privacy Policy, available on its Website (www.skipperi.com), are incorporated herein by reference and made a part of the Agreement between Skipperi and the User.
In the event of any conflict between this Agreement and any Subscription Level description, Price List, Application content, Website content, or Operator local rules, this Agreement controls; provided, however, that location-specific safety, operating, fueling, and return rules applicable to a particular Boat shall control solely with respect to the use of that Boat to the extent they do not materially increase the User’s fees, liabilities, or obligations beyond those set forth in this Agreement without the User’s express consent.
USER MEMBERSHIP
The User has the right to use the Application during the current Membership Term and use the Boats based on the Subscription Level chosen and in accordance with the terms of this Agreement. “Membership Term” means the twelve (12)-month period beginning on the date the User’s membership begins, and each successive twelve (12)-month renewal term thereafter.
A. Eligibility Requirements.
A User is eligible for Membership if they are at least 25 years of age; have the legal authority and capacity to enter into this Agreement; agree to comply with all of the terms of this Agreement; demonstrate the necessary skill and experience, and possess the necessary permits or certifications, if any, to operate the Boats; successfully complete the New Member Onboarding and Vetting Process; and sign a waiver.
B. Subscription Levels.
The User’s Membership is defined by the Subscription Level chosen by the User. The different Subscription Levels are available through the Application. The User must choose a Subscription Level when entering into this Agreement. The Subscription Level defines the level of access to Boats provided to the User, including, but not limited to, reservation types and times, Rental Periods, harbors, and possible additional services to be included in Membership, for example, extra reservations, possibility to extend Rental Periods, additional users, or training events. The Subscription Level also determines whether the User needs to pay an additional fee to use the Boats.
The User may change their Subscription Level during the Membership Term by contacting Skipperi's customer service, except that the User may not downgrade their Subscription Level. For example, the User may not change from the Medium Subscription Level to the Lite or Pay-As-You-Boat Subscription Level. The Membership Fee will be adjusted effective as of the month in which the Subscription Level change takes effect. If the change takes effect in the middle of a month and the User has already paid the monthly fee for the previous Subscription Level, the User will be charged the difference between the monthly fee for the new Subscription Level and the monthly fee for the previous Subscription Level.
All terms and included rights and additional services of the different Subscription Levels are available on Skipperi’s website and also on the User’s “My Skipperi” page on the Application, and are incorporated into this Agreement by reference.
C. Fees.
The selected Subscription Level determines the fees to be paid by the User, including, but not limited to, any initiation fee, the Membership Fee, pay-as-you-go boating fees, and additional service fees, if any. Fees are charged to the payment method on file in the Application. All fees, charges, damages, deductibles, and other amounts payable by the User under this Agreement are exclusive of applicable taxes. Skipperi and/or the Operator may collect, and the User shall pay, any sales, use, value-added, excise, or other similar taxes required by law in connection with amounts paid by the User under this Agreement.
The fee payable by the User for each Membership Term (the “Membership Fee”) is determined before the beginning of that Membership Term and depends on the Subscription Level selected by the User. Specific fees are available on Skipperi’s website.
Skipperi may make available different payment and installment options for the Membership Fee from time to time. Regardless of the payment or installment option selected, the User remains responsible for payment of the full Membership Fee.
The Membership Fee will be charged in accordance with the payment or installment option selected by the User. By providing payment information to Skipperi, the User authorizes Skipperi and its payment processors to store the User’s payment credentials and charge the payment method on file for the Membership Fee, in accordance with the payment or installment option selected by the User, in addition to any fees and charges for additional services or damages or costs for which the User is or becomes liable under the terms of this Agreement. If the User selects a monthly installment option, monthly fees will be charged on the first business day of each month. Additional fees or costs will be charged as they are incurred.
If Skipperi is unable to charge a fee to the User's payment card or a charge to the card is rejected, Skipperi has a right to invoice the User all outstanding fees and charges and terminate the User’s access to the Application or pause the User's account until all invoices are paid in full. In addition, Skipperi may charge the User a late fee on the total amount of all outstanding invoices at a rate equal to the lesser of 1.5% per month or the maximum rate permitted by applicable law. The User shall also reimburse Skipperi for any chargeback fees, collection costs, and reasonable attorneys’ fees incurred in collecting past-due amounts. The User remains liable for the full Membership Fee. Suspension or termination of the User’s account does not relieve the User of any payment obligations accrued under this Agreement.
D. Scheduling Boat Reservations.
Boats are scheduled through the Skipperi Application. A reservation entitles the User to use the Boat during the scheduled time or “Rental Period.” The User’s actual period of possession, custody, or control of the Boat, beginning when the User takes possession of the Boat and ending when the Boat is returned and the return process is completed in the Application, is the “Use Period.” The following Rental Periods can be booked in the Application:
08:00 – 13:30 or another similar period (”Morning Reservation”)
14:00 – Sunset local time or another similar period (”Evening Reservation”)
8:00 AM to Sunset local time or another similar period ("Full Day Reservation")
“Another similar period” means that Skipperi has the sole right to maintain different Rental Periods in different Boat rental locations and/or adjust the Rental Periods based on when the sun rises and sets in a particular location.
Via the Skipperi Application, a User may have access to two different types of reservations when booking Boats: spontaneous reservations and advance reservations. The Rental Period for a spontaneous reservation must begin either on the same day the User makes the booking or on the following day. The Rental Period for an advance reservation must start no earlier than two days after User makes the booking. The User may have only one (1) pending Full Day Reservation. The Full Day Reservation must be made at least eight (8) days (192 hours) prior to the beginning of the Rental Period.
Skipperi does not guarantee that the Boats will always be available to the User on a specific date and time requested, absent a confirmed Reservation.
E. Canceling a Boat Reservation.
The User may cancel their Reservation no less than twenty-four (24) hours prior to the start of the Rental Period, without any penalty or charges. Cancellation of a Reservation must always be done on the Application. Usage fees for Pay-As-You-Go Boaters are not refundable when a Reservation is canceled less than twenty-four (24) hours prior to the start of the Rental Period. If the User does not provide the applicable notice, the User may be charged a cancellation fee.
F. Picking Up the Boat.
In connection with the Reservation, the User receives instructions on where to locate the Boat, as well as instructions on how to access the dock and keys of the booked Boat and the associated code needed to open the compartment housing the keys. Keys are always available in a code-protected key box in the Boat. The location of delivery of the Boat shall be identified on the Application upon the making of a Reservation.
G. Returning the Boat.
The User must return the Boat within the Rental Period to the same location and dock where the User received and took control of the Boat. The User shall end the Reservation through the Application. The User's Reservation and Use Period shall end when the Boat has been returned and the return process on the Application has been completed. If the User returns the boat later than the end of the Rental Period, the User may be charged a late return fee. The User shall return the Boat, properly docked and cleaned, and shall return the key to the key box intended for it. The User must return the Boat in no worse condition than at the start of the Rental Period and must report any issues through the Application.
H. Reporting Boat Damage/Charges for Boat Damage.
The User agrees to immediately report any accident, loss or damage to a Boat via the Application or by e-mail to support@skipperi.com and further agrees to cooperate and provide written or oral statements if requested to do so. Skipperi’s phone number(s) and email addresses can also be found on the Application. If Skipperi or Operator reasonably determines, after investigation, that any fault, damage, loss, or claim arising during the User’s Use Period is chargeable to the User under this Agreement, Skipperi or the Operator may charge the User’s payment method on file for the amount reasonably determined to be payable by the User, including, for claims covered by the Applicable Insurance, the applicable insurance deductible, up to $2,500 per occurrence, together with any applicable taxes required by law. Notwithstanding and without limiting the foregoing, Skipperi or the Operator may also charge the User's payment method on file the fees for specific items deemed "Minor Damage" as set forth on Skipperi’s then-current Price List, together with any applicable taxes required by law. Skipperi or the Operator shall also be entitled to charge the User for any uninsured, excluded, denied, or otherwise uncovered loss or damage for which the User is responsible under this Agreement. Skipperi may immediately suspend the User’s account and reservation privileges pending investigation of any accident, damage report, policy violation, suspected misuse, unpaid balance, chargeback, or safety concern.
I. Late Return and Other Charges.
If the User fails to return the Boat within the Rental Period, the User's payment method on file may be charged for the amounts payable as a result of the User's non-compliance under this Agreement. The minimum cleaning fee or low-fuel fee is $200. If the User fails to properly cancel a Reservation or fails to pick up and use the Boat during the Rental Period, the User may be charged a $100 cancellation fee. If the Boat is returned after the end of the Rental Period, the User may be charged a late fee of $100 per hour or partial hour. All fees and charges may be posted to the User’s payment method on file in the Application, together with any applicable taxes required by law.
J. Training and Skills Course.
The Operator renting the boat will provide the User with a basic training and skills course for the benefit of User to provide basic skills and practical training in operating the Boat. Prior to authorizing User’s rental of a boat, the Operator will assess the User’s skills for knowledge consistent with the basic training provided.
K. Boating In Other Skipperi Locations.
The User may, under this Agreement, reserve and use Boats made available by other Operators through the Application. The User’s primary Operator is the Operator through which the User’s membership is established. Before reserving or using a Boat made available by another Operator, the User must comply with any applicable licensing requirements, local operating rules, privacy notices, and other terms and conditions applicable to that Operator and the use of its Boats. This Agreement governs the User’s membership generally. However, with respect to any Boat made available by another Operator, the applicable Operator’s terms, requirements, and local rules will apply to the reservation and use of that Boat, including refueling, return, and any damage, incident, or claim relating to that Boat. The Membership Fee remains determined by the User’s primary Operator and selected Subscription Level.
For the avoidance of doubt, the User may not take any Boat reserved in the United States across an international border. If the User breaches this restriction, Skipperi may immediately suspend and terminate the User's Agreement and membership. In addition, the User will be liable for any fees, penalties, damages, losses, taxes, costs, and expenses resulting from the breach, including reasonable attorneys’ fees and recovery costs.
TERMS AND CONDITIONS
OF BOAT OPERATION
Use of the Boat(s) is subject to the following terms and conditions.
The User shall assume control of the Boat from the Operator as a bareboat charter, including all machinery, equipment, furnishings, and gear associated with the Boat during the Use Period. The User agrees that the Boat shall be used exclusively as a recreational Boat by the User and the User’s guests, passengers and invitees during the Use Period and agrees not to transport merchandise for hire or carry passengers for hire, or engage in any trade, or in any way violate any laws of the United States or of any other governmental body within the jurisdiction in which the Boat may be at any time during the Use Period.
A. Use of the Boat.
Boat Capacity: The User acknowledges and agrees that the maximum number of persons allowed aboard the Boat while underway, moored, docked or anchored shall be the lesser of the amount for which the Boat is rated or twelve (12) persons. The User is prohibited from charging the User’s guests, passengers and invitees a fee or accepting other consideration as a condition of anyone being aboard the Boat.
Safety; Authorized operator: The User shall, at all times, be responsible for the Boat including for the safety of the Boat and its passengers, guests and invitees for the duration of the Use Period. Absent an emergency situation, the User is the only person authorized to operate the Boat during the Use Period. While using the Boat, the User agrees to comply with all applicable local, state and federal laws and regulations.
Navigational limitations: Inland, intracoastal and coastal waters not to exceed 10 miles from shoreline.
Prohibited activities: The following activities are STRICTLY PROHIBITED at any time during the Use Period: Diving, Hot Dogging, Reckless Operation, Navigation in Swimming Areas, Racing, Water Skiing, Barefoot Skiing, Kneeboarding, Sit-down Hydrofoiling, Skurfing, Wakeboarding, Wakeskating, Discing and Tubing. Violation of these prohibitions/restrictions shall be considered a breach of this Agreement and the User shall be liable for any and all damages resulting thereby, including but not limited to, damages, costs and expenses arising as the result of personal injury or death, or of a cancelation or invalidation of the Boat’s insurance.
Prohibited hours of operation: Sundown to sunrise.
Use of life jackets: The User is responsible for ensuring that there are adequate life jackets on board the Boat that meet the size and weight requirements of all passengers and crew, and that all applicable laws and regulations regarding usage of life jackets are followed.
Pets: Unless otherwise stated, the User may bring pets onto a Boat.
Running Expenses/Maintenance/Charges of Boat: The User shall maintain the Boat in good order and condition. The User shall be responsible for any repairs to the Boat to the extent the need for such repairs arises from the negligence or willful misconduct of the User, its passengers, guests, or invitees. The User is responsible for all running expenses incurred during the Use Period, including, but not limited to, dockage, port charges, temporary dock fees, pilotage fees, if any, consumable goods, food, water, fuel, fees and taxes as applicable, provisions and supplies for the User’s use and enjoyment, and any other expenses necessary to maintain the User and its occupants in good order during the Use Period.
Fuel Payments and Refueling the Boat: The User is responsible for all costs of fuel consumed during the Use Period. The Application captures information about the amount of fuel used and refueled by the User for each Reservation. This is the User's “Fuel Balance.” After a Reservation, the User's payment method on file will be charged for any negative Fuel Balance based on the market price of fuel + $0.20/gallon. The User must use only the fuel type and grade specified for the applicable Boat in the Application, on the Boat, or in any fueling instructions provided by Skipperi or the Operator (“Approved Fuel”). If multiple instructions are provided, the most restrictive requirement applies. The User may not use any fuel or other substance that does not meet the Approved Fuel requirements, including any fuel containing ethanol in excess of the permitted amount for the applicable Boat. If the required fuel type or grade is not available at the pump, the User must follow the fueling instructions provided in the Application or contact the Operator before fueling. The User shall be responsible for any loss or damage resulting from the use of unapproved fuel or any other unsuitable substance. The User is responsible to fuel the boat according to the process described in the Reservation in the Application. The fee for not fueling according to the Reservation process is $200 as set forth on Skipperi’s then-current Price List. No Boat shall be fueled or refueled while any persons are on the Boat.
B. Pre and Post Charter Inspections.
The User shall perform a pre-charter inspection of the Boat upon taking delivery to confirm that the Boat is suitable for the User’s intended use, to become familiar with the Boat, its equipment, and applicable safety procedures, and to identify any pre-existing damage or other condition of the Boat. The Boat shall also be inspected upon return, and any damage or other condition not noted during the pre-charter inspection shall be the User’s responsibility. All inspections shall be documented through the Application. At a minimum, the User must take clear photos of the Boat's propeller, skeg, and an overall photo of the Boat, as well as photos of any damage. Instructions for taking photographs are available in the Application. The User must verify in the Application, before the Use Period begins, whether the Boat has any damage. The User acknowledges that photographs, video, timestamps, telematics, fuel data, GPS/location data, and other electronically collected Boat and Application data may be used by Skipperi and Operator as evidence of the Boat’s condition, use, timing, location, operation, and fuel status, and will be presumed accurate absent manifest error.
C. Liens.
The User and the User’s passengers, guests, and invitees shall have no right, power, or authority to create, incur, or permit any lien or encumbrance of any kind to be imposed on the Boat or any of its appurtenances. The User agrees to indemnify, defend and hold harmless the Operator from and against any charges, losses, liabilities, costs, and expenses arising out of any such lien or encumbrance, including reasonable attorneys’ fees and costs incurred in securing its satisfaction or release.
D. Insurance/Uninsured Loss or Damage.
To the extent provided under any applicable policy or policies of insurance maintained by Skipperi and/or the Operator for the applicable Boat (the “Applicable Insurance”), the User may be an additional insured or otherwise entitled to coverage, but only to the extent provided by, and subject to, the terms, conditions, exclusions, and limits of, the Applicable Insurance. The User’s liability may be limited to the applicable deductible only for covered claims and only if the User fully complies with this Agreement and all requirements of the Applicable Insurance. For covered claims involving bodily injury or property damage to a third party, the User’s deductible shall not exceed $2,500 per occurrence, provided that the User has fully complied with this Agreement and the Applicable Insurance. The maximum available limits of coverage for claims under any applicable protection and indemnity insurance are up to $1,000,000 per occurrence and in the aggregate, subject to the terms, conditions, exclusions, and limits of the Applicable Insurance. For covered physical loss of or damage to the Boat, any applicable hull insurance maintained by the Operator may provide coverage, but only to the extent provided by, and subject to, the terms, conditions, exclusions, deductibles, and limits of the Applicable Insurance. For covered physical damage claims, the User’s deductible shall not exceed $2,500 per occurrence, provided that the User has fully complied with this Agreement and the Applicable Insurance. These limits do not apply to claims not covered by the Applicable Insurance.
In addition to any applicable deductible, the User is responsible for all uninsured, excluded, denied, or otherwise uncovered loss, damage, liability, cost, or expense for which the User is responsible under this Agreement. This includes, without limitation, any loss arising from the User’s breach of this Agreement, prohibited use, operation by an unauthorized person, intoxicated or impaired operation, use outside navigational limits, late reporting, or any act or omission that voids, impairs, invalidates, or results in the denial of insurance coverage. The User is also responsible for any loss, damage, theft, disappearance of equipment or the Boat, collision, or other occurrence during the Use Period to the extent not covered by the Applicable Insurance or otherwise chargeable to the User under this Agreement.
If any policy of insurance applicable to a Boat requires waivers of liability and/or assumption of risk forms as a condition of coverage, the User shall obtain the signature of each passenger and guest, including the User, before the Boat leaves the dock or its place of mooring.
The User is strongly encouraged to determine whether the Applicable Insurance is adequate for the User’s needs and to obtain any additional insurance the User deems necessary. A copy of the applicable certificate of insurance and, if available for disclosure, the relevant policy terms, will be made available for the User’s review upon request.
E. Compliance With Laws.
The User shall ensure compliance with all local, state and federal laws and U.S. Coast Guard regulations during the Use Period as well as the laws and regulations of any jurisdiction into whose waters the Boat shall enter during the Use Period. If the User or any of the User’s passengers, guests or invitees commits any offense contrary to the laws and regulations of any jurisdiction which results in the Boat being detained, arrested, seized or fined, and for which Operator incurs costs, fees or expenses, the User shall indemnify Operator against any and all such loss, damage and expense, including the payment of costs and reasonable attorney’s fees. The User shall be liable for any and all fines, penalties, damages and forfeitures as a result of any such offense or any negligence or intentional acts of the User or any of the User’s passengers, guests, or invitees and the User shall indemnify, hold harmless and defend Operator for the same, including for reasonable attorneys’ fees and costs.
F. Impaired Operation Prohibited.
The User warrants and agrees not to operate any Boat under the influence of alcohol, illegal drugs or marijuana, or any drug or substance, whether prescribed or over the counter, which prohibits or warns against the operation of machinery or vehicles while taking the drug or substance. The User acknowledges that the User has been informed of, or is otherwise aware of, the U.S. Coast Guard’s policy of “zero tolerance” of drugs aboard vessels and warrants that there will be no illegal drugs, marijuana, or other contraband brought aboard the Boat at any time during the Use Period. The User agrees to fully indemnify, defend and hold Operator harmless for any losses suffered by Operator in the event that the User breaches this covenant, including, but not limited to, for any losses, fines, penalties, and damages, including reasonable attorneys’ fees and costs, incurred by Operator in defending any action brought against Operator by any governmental agency or otherwise, whether local, state, federal, or foreign, as a result of the violation of any regulations, laws, or contraband laws or policies.
LEGAL TERMS AND CONDITIONS
A. Force Majeure
Force Majeure
.
If the User does not receive the Boat in accordance with the User's Reservation due to force majeure, or reasons beyond the control of Operator, or by reason of the Boat having been lost or disabled, the User may reschedule the Reservation or schedule another Boat, if available. Force majeure or reasons beyond the control of Operator include, but are not limited to, (a) acts of God; (b) flood, fire, earthquake, hurricane, storms, tsunami or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, epidemic, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, disputes, or slowdowns or other industrial disturbances; (i) shortage of adequate power or transportation facilities or fuel shortages or unavailability; and (j) for any other cause whether similar or dissimilar to those enumerated, beyond the reasonable control of Operator. If the User does not receive the Boat in accordance with the User’s Reservation due to some other reason, the User shall be entitled to a credit in the sum of $50.00 toward future usage or monthly service fees, depending on the User’s Subscription Level.
Operator may limit or refuse the User’s access to the Boats in case of dangerous or hazardous weather or water conditions, required Boat maintenance, and in other circumstances or situations where the health or welfare of the User or Boat may be at issue.
B. LIMITATION OF LIABILITY, WAIVER AND RELEASE OF CLAIMS, INDEMNIFICATION, ASSUMPTION OF RISK.
PLEASE READ THIS SECTION CAREFULLY AS THESE TERMS MAY AFFECT YOUR LEGAL RIGHTS
THE USER IS AWARE AND UNDERSTANDS THAT THERE ARE INHERENT RISKS INVOLVED WITH THE USE OF THE APPLICATION, THE SERVICES PROVIDED AND THE USE OF THE BOATS INCLUDING, BUT NOT LIMITED TO, EQUIPMENT FAILURE, OPERATOR ERROR, PERILS OF THE SEA, PERILS OF THE WEATHER, HARM CAUSED BY OTHER VESSELS, COLLISION, SINKING, ENVIRONMENTAL ELEMENTS, PERILS OF INSECTS AND MARINE LIFE, ACTS OF FELLOW PARTICIPANTS, ENTERING AND EXITING THE WATER, SWIMMING, BOARDING OR DISEMBARKING BOATS, ACTIVITIES ON THE DOCKS, AND OTHER RISKS, DANGERS, AND HAZARDS, INCLUDING BUT NOT LIMITED TO THE RISK OF SERIOUS INJURY, DEATH, OR PROPERTY DAMAGE. THE USER UNDERSTANDS THAT THEIR PARTICIPATION IS ENTIRELY VOLUNTARY AND ACKNOWLEDGES THAT THEY ARE VOLUNTARILY USING THE APPLICATION, SERVICES AND THE BOATS AND FREELY ACCEPTS AND FULLY ASSUMES ANY AND ALL OF THE RISKS, DANGERS, AND HAZARDS INVOLVED AND FULLY ASSUMES THE POSSIBILITY OF INJURY, DEATH, PROPERTY DAMAGE AND ALL RISKS, WHETHER HEREIN SPECIFICALLY STATED OR NOT, AND WHETHER CAUSED BY THE NEGLIGENCE OF SKIPPERI OR OTHERWISE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE USER HEREBY FULLY AND FOREVER RELEASES AND DISCHARGES SIREN MARINE, INC. AND ITS PARENT, SUBSIDIARIES, AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, MEMBERS, REPRESENTATIVES, EMPLOYEES, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, LICENSEES, INSURERS, SUPPLIERS, PREDECESSORS, SUCCESSORS AND ASSIGNS (HEREINAFTER COLLECTIVELY REFERRED TO AS "RELEASEES") FOR AND FROM ANY AND ALL RIGHTS, LIABILITIES, LOSSES, EXPENSES, DAMAGES, CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, INJURIES, INCLUDING BUT NOT LIMITED TO, ANY PHYSICAL, ECONOMIC, NON-ECONOMIC, OR PSYCHOLOGICAL INJURY, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, DAMAGE TO PROPERTY, ILLNESS, PARALYSIS, DEATH, ECONOMIC LOSS, EMOTIONAL LOSS, SO-CALLED HEDONIC DAMAGES, NON-PECUNIARY DAMAGES, OR ANY OTHER DAMAGES AND LOSSES WHATSOEVER, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, BREACH OF PRIVACY, OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SKIPPERI WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE APPLICATION, THE SERVICE, THE BOATS, USE OF THE BOATS, AND/OR THE USER'S USE OF, OR INABILITY TO USE, OR RELIANCE ON, THE APPLICATION, SERVICE, OR ANY CONTENT, MATERIALS, POSTING, OR INFORMATION CONTAINED THEREIN (COLLECTIVELY, THE "RELEASED MATTERS").
THE USER HEREBY EXPRESSLY FULLY AND FOREVER WAIVES AND RELEASES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS, LIABILITIES, LOSSES, EXPENSES, DAMAGES (ACTUAL AND CONSEQUENTIAL), CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, INJURIES, RECOVERIES, FINES, PENALTIES AND OTHER COSTS OR EXPENSES, OF ANY KIND OR NATURE, INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEY’S FEES AND COSTS AND ACCOUNTING FEES (COLLECTIVELY, THE "CLAIMS"), WHICH THEY HAVE OR MAY IN THE FUTURE HAVE AGAINST THE RELEASEES ARISING OUT OF, IN CONNECTION WITH, OR ATTRIBUTABLE TO THE RELEASED MATTERS. USER COVENANTS NOT TO MAKE OR BRING ANY SUCH CLAIM AGAINST THE RELEASEES OR ANY ONE OF THEM AND FOREVER RELEASES AND DISCHARGES THE RELEASEES FROM LIABILITY UNDER SUCH CLAIMS.
NOTWITHSTANDING THE FOREGOING, IF ANY OF THE RELEASEES ARE HELD LIABLE FOR CLAIMS ARISING OUT OF, RESULTING FROM, OR IN ANY WAY CONNECTED WITH THE RELEASED MATTERS, THE AGGREGATE LIABILITY OF THE RELEASEES SHALL NOT BE MORE THAN THE AMOUNT OF ONE (1) MONTH OF FEES PAID BY THE USER UNDER THE SELECTED SUBSCRIPTION LEVEL, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCLUDING ANY CLAIM FOR PERSONAL INJURY OR DEATH OR OTHER CLAIM FOR WHICH LIMITATION IS PROHIBITED BY LAW.
NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT ANY LIABILITY OR WAIVE ANY CLAIM TO THE EXTENT SUCH EXCLUSION, LIMITATION, OR WAIVER IS PROHIBITED BY APPLICABLE LAW, INCLUDING ANY NON-WAIVABLE CLAIM BASED ON FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR ANY NON-WAIVABLE CLAIM FOR PERSONAL INJURY OR DEATH.
IN THE EVENT OF ANY DISPUTE BETWEEN USERS, OR BETWEEN A USER AND OPERATOR OR USER AND A THIRD PARTY ARISING OUT OF, RESULTING FROM, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE APPLICATION, THE SERVICE, THE BOATS OR ANY SEPARATE CONTRACT OR TRANSACTION BETWEEN THE PARTIES TO SUCH DISPUTE(S) OR THE APPLICATION OR SERVICE, THE USER HEREBY AGREES TO INDEMNIFY, RELEASE, DEFEND AND HOLD HARMLESS (INCLUDING THE PAYMENT OF REASONABLE ATTORNEY’S FEES AND COSTS) THE RELEASEES FROM ANY AND ALL CLAIMS, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE(S) TO THE EXTENT ARISING FROM THE USER’S ACTS, OMISSIONS, USE OF THE APPLICATION OR BOATS, OR BREACH OF THIS AGREEMENT. FURTHER, EACH USER HEREBY AGREES TO INDEMNIFY, RELEASE, DEFEND AND HOLD HARMLESS (INCLUDING THE PAYMENT OF REASONABLE ATTORNEY’S FEES AND COSTS) THE RELEASEES FROM ANY AND ALL CLAIMS BROUGHT AS A RESULT OF SUCH USER'S BREACH OF THE TERMS OF THIS AGREEMENT, VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY, AND USE OF THE APPLICATION, SERVICE, OR THE BOATS.
C. WAIVER OF WARRANTIES.
SKIPPERI MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, EXCEPT FOR THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT OR EXPRESSLY INCORPORATED HEREIN BY REFERENCE. THE USER ACKNOWLEDGES AND AGREES THAT ALL BOATS MADE AVAILABLE THROUGH THE APPLICATION FOR RENTAL ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SKIPPERI SHALL NOT BE RESPONSIBLE OR LIABLE TO USER FOR ANY DEFECT OF ANY TYPE OR NATURE IN ANY BOAT MADE AVAILABLE FOR RENTAL THROUGH THE APPLICATION BY AN OPERATOR AND SHALL NOT BE LIABLE FOR ANY LIABILITIES, LOSSES, EXPENSES, DAMAGES, CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, INJURIES, INCLUDING BUT NOT LIMITED TO, ANY PHYSICAL, ECONOMIC, NON-ECONOMIC, OR PSYCHOLOGICAL INJURY, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, DAMAGE TO PROPERTY, ILLNESS, PARALYSIS, DEATH, ECONOMIC LOSS, EMOTIONAL LOSS, SO-CALLED HEDONIC DAMAGES, NON-PECUNIARY DAMAGES, OR ANY OTHER DAMAGES AND LOSSES WHATSOEVER, HOWEVER CAUSED, RESULTING IN WHOLE OR IN PART FROM ANY DEFECT, NEGLIGENCE, ACT OR OMISSION IN THE CONSTRUCTION, MAINTENANCE, OPERATION, OR USE OF ANY BOAT MADE AVAILABLE THROUGH THE APPLICATION, AND USER HEREBY FULLY AND FOREVER WAIVES AND RELEASES ALL SUCH CLAIMS WHICH THEY HAVE OR COULD HAVE AGAINST SKIPPERI AND SKIPPERI’S PARENT, SUBSIDIARIES, AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, MEMBERS, REPRESENTATIVES, EMPLOYEES, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, LICENSEES, INSURERS, SUPPLIERS, PREDECESSORS, SUCCESSORS AND ASSIGNS. USER FURTHER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS SKIPPERI FROM ANY AND ALL SUCH CLAIMS, INCLUDING THE PAYMENT OF REASONABLE ATTORNEY’S FEES AND COSTS. NOTHING IN THIS SECTION C SHALL EXCLUDE OR LIMIT ANY LIABILITY OR WAIVE ANY CLAIM TO THE EXTENT SUCH EXCLUSION, LIMITATION, OR WAIVER IS PROHIBITED BY APPLICABLE LAW.
D. INDEMNIFICATION OF SKIPPERI AND OPERATOR FOR SPECIFIC ACTS.
Notwithstanding anything to the contrary set forth in this Agreement, and in addition to and not in lieu of any other indemnifications provided for herein, the User shall indemnify, defend, and hold harmless Skipperi and the Operator from and against any and all losses, damages, liabilities, claims, costs and expenses arising directly or indirectly from:
• the willful misconduct or gross negligence of the User;
• the use of the Boat by the User under the influence of alcohol, marijuana, any illegal substance or any or other similar substance or for criminal purposes;
• racing the boat, or the use of the Boat by the User in a boat racing event, or the practice of or for such an event;
• an action of a User's pet;
• the transport by the User of dangerous goods including gasoline, including unauthorized fuel containers or other hazardous materials;
• the Boat becoming unseaworthy as a result of the actions or omissions of the User or the User’s passengers, guests, or invitees;
• the use of the Boat by the User or their passengers for illegal purposes;
• the breach of this Agreement by the User;
• towing that is carried out with the Boat by the User, unless the towing is carried out to save human lives;
• fire or explosion that ignites as a result of oil, gasoline or other similar substance in a loose canister;
• the User's actions or inactions that cause the theft or disappearance of the Boat; or
• the User's actions or inactions that result in the cancelation or termination of the Boat’s insurance for any claim which would have otherwise been a covered claim under the Applicable Insurance.
E. Term and Termination of Agreement.
This Agreement becomes effective once the User creates an account in the Application and accepts this Agreement. This Agreement will automatically renew for each successive Membership Term unless the User cancels no less than three (3) months before the applicable renewal date (“Termination Period”). The User may cancel by email to support@skipperi.com, or by any other cancellation method Skipperi makes available from time to time. Following enrollment, Skipperi will provide the User with an acknowledgment of the renewal terms, cancellation policy, and how to cancel, in a form the User may retain. If the User does not cancel the Agreement during the Termination Period, the User agrees to pay the Membership Fee for the next Membership Term.
The User has the right to terminate this Agreement in accordance with this Section and the Section titled “Amendments” below. Skipperi has the right to terminate this Agreement with immediate effect if the User breaches a material term of this Agreement. In the event Skipperi terminates this Agreement due to the User’s breach of this Agreement, the User shall have no claim to a refund for any fees or charges already paid, except to the extent required by applicable law.
Skipperi may terminate this Agreement with immediate effect if Boats made available through the Application become unavailable for use for any reason. Skipperi may also terminate this Agreement for any other reason upon fifteen (15) days’ notice provided through the Application. Upon termination of this Agreement by Skipperi as provided in this Agreement, Skipperi shall not be liable to the User or any third party for any damages, fees or costs arising solely from such termination.
F. Tracking the Usage of the Boat.
Skipperi may collect, store, use and disclose information provided by the Boat's systems during and after the Use Period for purposes of operating the Service, monitoring boat use, safety, maintenance, refueling, claims handling, fraud prevention, theft prevention and recovery, regulatory compliance, and enforcing this Agreement. Such information may include:
• Location data, speed, and journey of the Boat;
• Drive time of the engine;
• Gasoline level in the fuel tank;
• Fuel flow data;
• Sounds and vibrations of the hull and the engine; and
• Maintenance requests of the system.
Such information may be shared among Skipperi, the Operator, Skipperi’s affiliates, service providers, insurers, and governmental or regulatory authorities, as reasonably necessary for those purposes and as otherwise described in Skipperi’s Privacy Policy.
G. Third-Party Beneficiary; Operator Enforcement.
Operator is an intended third-party beneficiary solely of those provisions of this Agreement relating to releases, waivers, indemnification, limitation of liability, damage responsibility, insurance, compliance with laws, and dispute resolution, and may enforce those provisions directly. Except as expressly provided in the preceding sentence, nothing in this Agreement gives Operator any additional rights or remedies under this Agreement or makes Operator a party to this Agreement.
H. Disputes Concerning the Agreement.
Except as otherwise provided for herein, this Agreement and any dispute, claim, or controversy arising out of or relating to this Agreement, the Application, the Service, or the User’s reservation or use of a Boat shall be governed by Federal Admiralty Law to the extent applicable. To the extent Federal Admiralty Law does not apply, the laws of the State in which the User took possession of the Boat for the applicable Reservation, excluding its conflict-of-laws rules, shall apply. The parties agree that any such dispute shall be brought exclusively in the state courts located in the county where the User took possession of the Boat for the applicable Reservation or, if federal jurisdiction exists, the United States District Court encompassing that county, and each party submits to the personal jurisdiction of such courts. THE PARTIES VOLUNTARILY AND INTENTIONALLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION OR CONTROVERSY ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR USER’S MEMBERSHIP. If any provision of this Agreement shall, for any reason, be found to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement.
Skipperi, for the benefit of Operator and at its sole discretion, may take reasonable efforts to help Operator resolve disputes. For the avoidance of doubt, Skipperi has no obligation to resolve disputes between Operator and the User or between Operator and outside parties. To the extent that Skipperi attempts to resolve a dispute, Skipperi will do so in good faith and in accordance with Skipperi’s policies. Skipperi has no power and will not make judgments regarding legal issues or claims. The User may contact Skipperi at support@skipperi.com for more information about the dispute resolution process.
I. Limitation of Damages.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR ANY CLAIM OR LIABILITY THAT MAY NOT BE LIMITED UNDER APPLICABLE LAW, ANY DAMAGES AWARDED ON ACCOUNT OF A BREACH OF THIS AGREEMENT OR ANY DISPUTE ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO ACTUAL, OUT-OF-POCKET MONETARY DAMAGES AND SHALL NOT INCLUDE CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER. NOTHING IN THIS SECTION SHALL LIMIT OR EXCLUDE LIABILITY TO THE EXTENT SUCH LIMITATION OR EXCLUSION IS PROHIBITED BY APPLICABLE LAW, INCLUDING FOR FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR ANY NON-WAIVABLE CLAIM FOR PERSONAL INJURY OR DEATH.
This Section does not limit the User’s indemnification obligations under this Agreement.
J. Amendments to Agreement.
Skipperi may amend this Agreement from time to time by providing notice to the User at least thirty (30) days before the amendment takes effect. Notice will be provided via email to the last email address registered by the User on the Application. If the User wishes to reject the amendment and terminate the Agreement, the User must do so prior to the effective date of the amendment through any cancellation method then made available by Skipperi under this Agreement. If the User does not provide timely notice of rejection/termination, they will be deemed to have accepted the amendment.
K. Assignment.
The User may not assign its rights or obligations under this Agreement without Skipperi's prior written consent, which Skipperi may, in its sole discretion, withhold. The terms and conditions of this Agreement shall bind any permitted successors and assigns of the User. Skipperi may assign or transfer this Agreement to a third party.
L. Additional Conditions.
For any questions or concerns, Skipperi can be contacted at 1.833.622.0833 or at support@skipperi.com
THE USER REPRESENTS AND WARRANTS THAT THEY HAVE READ THIS AGREEMENT AND THE TERMS AND POLICIES INCORPORATED HEREIN BY REFERENCE AND MADE A PART OF THIS AGREEMENT, AND THAT THEY UNDERSTAND AND WILL ABIDE BY ALL TERMS AND CONDITIONS HEREIN.
Electronic acceptance of this Agreement, including by click-through acceptance, electronic signature, facsimile transmission, or other electronic assent, and any copy of such acceptance shall have the same force and effect as an original signature.