Terms and Conditiions
Navico BoatConnect Application
Subscriber Terms and Conditions
Effective Date: October __, 2018
Welcome to Navico BoatConnect (referred to hereafter as the “BoatConnect” or the “Application”). These Subscriber Terms and Conditions (these “Terms” or this “Agreement”) apply to your use of BoatConnect in connection with a telematics hardware system (the “System”).
BY DOWNLOADING THE APPLICATION YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT, AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS EVEN IF YOU HAVE NOT SIGNED A SUBSCRIBER AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS, YOU ARE NOT PERMITTED TO USE THE APPLICATION.
These Terms are the agreement between us and you regarding your use of the Application and our provision of Services (defined in Section 1.A(vi)). As used in these Terms, the terms “you” and “your” shall be deemed to refer to, and these Terms shall be binding upon, any person or entity who downloads or uses the Application pursuant to this Agreement. As used in this Agreement, the terms “we,” “us,” and “our” shall be deemed to collectively refer to the following persons/entities, (i) Navico, Inc. (“Navico”) and its affiliates, parent company, successors and assigns (collectively, “Affiliates”); (ii) Navico dealers and partners (together, “Partners”); and (iii) the employees, directors, officers, subcontractors, representatives and agents of Navico, its Affiliates, and its Partners. In addition, the following persons and entities are intended third party beneficiaries of this Agreement: Service Providers (defined below) and their affiliates, successors and assigns (“Third Party Beneficiaries”).
BY DOWNLOADING THE APPLICATION AND/OR ACTIVATING YOUR SUBSCRIPTION, YOU CONSENT ON BEHALF OF YOU AND OCCUPANTS IN YOUR VESSEL TO WIRELESS COMMUNICATION BEING CONDUCTED IN YOUR VESSEL TO ENABLE US AND OUR SERVICE PROVIDERS TO DELIVER SERVICES (DEFINED IN SECTION 1.A) TO YOU OR OTHER OCCUPANTS IN YOUR VESSEL.
YOU, ON BEHALF OF YOURSELF AND OCCUPANTS IN YOUR VESSEL, ALSO CONSENT TO THE COLLECTION, RECORDING AND USE OF THE INFORMATION DESCRIBED IN THIS AGREEMENT AND RELEASE US FROM AND AGAINST ANY AND ALL CLAIMS OR LIABILITIES ARISING OUT OF THE COLLECTION AND USE OF THIS INFORMATION.
PLEASE READ AND KEEP A COPY OF THIS AGREEMENT AND ANY ADDITIONAL BOATCONNECT SERVICES DOCUMENTS (“BOATCONNECT DOCUMENTS”) GIVEN OR SENT TO YOU. ANY BOATCONNECT DOCUMENTS (REGARDLESS OF WHETHER THEY STATE THEY BECOME PART OF THIS AGREEMENT) ARE AUTOMATICALLY DEEMED A PART OF THIS AGREEMENT IF YOU ACCEPT ANY OF THE SERVICES SUCH DOCUMENTS DESCRIBE.
- 1. SERVICE REQUIREMENTS AND SERVICE PROVIDERS.
- A. Eligibility For Use of BoatConnect; License Grant; Reservation of Rights.
(i) You must be at least 18 years old, or the age of majority, as determined by the laws of your state or country of residency, to assume the obligations set forth in this Agreement.
(ii) You are solely responsible for the use of the Application and the Services in connection with the System installed on your Vessel, even if you are not the one using it, and even if you later claim the use was not authorized. You are also solely responsible for the Services requested by you, or by anyone using your Vessel.
(iii) Subject to the terms of this Agreement, Navico grants you a limited, non-exclusive, nontransferable, non-sublicensable, revocable license to download and install the Application on one or more mobile devices owned or otherwise controlled by you (each a “Mobile Device”) for your personal, non-commercial use in connection with a single System, strictly in accordance with the BoatConnect Documents.
(iv) You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. As further described in Section 7.A, Navico reserves and shall retain its entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
- B. System Requirements. Your marine vessel (“Vessel”) must be equipped with a System in order for us to provide the Services.
- C. Third Party Services; Emergencies.
(i) By downloading, installing, using, and providing information to or through the Application, you agree to allow Navico to share data collected by the System with Service Providers (defined below) in order to enable the Service Providers to provide Services to you (“Third-Party Services”). The “Service Providers” include any person, company, or entity who provides any service, equipment, or facilities in connection with the Services or the System, including, but not limited to, wireless service providers and underlying wireless carriers, and, if the functionality is available and you “opt-in” as provided in subsection (ii) below, Emergency Responders and Ancillary Providers.
(ii) Future updates to the Application may allow BoatConnect to connect you or your Vessel to emergency responders such as the Coast Guard, police, fire department, or ambulance service (the “Emergency Responders”), or to ancillary services providers like insurance companies, towing companies, and boat manufacturers, distributors, and dealers (“Ancillary Providers”). If and when available, you may “opt in” to allow Navico to share data collected by the Application with Emergency Responders and/or Ancillary Providers by adjusting your user preferences in the Application. If you do not “opt in” to allow data sharing with Emergency Responders and/or Ancillary Providers, these additional services will not be available to you.
(iii) In the event the functionality is available through the Application and you “opt in” to allow Navico to share data with Emergency Responders, then Navico will use reasonable efforts to contact appropriate Emergency Responders for help when you ask for it or when the System in your Vessel signals for it, but it cannot be promised that any Emergency Responders will respond in a timely manner or at all. The laws in some places require an emergency to be confirmed before Emergency Responders will provide service. We will not contact Emergency Responders in these locations in response to any emergency signal or vessel alert about a security issue if we cannot confirm that an emergency exists. We also may not contact Emergency Responders in any location in response to a signal or vessel alert from vessels situated in locations which reasonably indicate that an emergency is unlikely, such as boat dealerships, rental companies, roadways or your home address. We will assume an emergency exists if our center receives a crash notification signal from your Vessel.
- 2. ACTIVATION; FEES, PAYMENT, BILLING AND TAXES.
- A. Activation; Fees and Billing.
(i) Upon your purchase and installation of a System in your Vessel, or if you purchase or lease a Vessel that is equipped with a System, then upon your purchase or lease of the Vessel, you must download, install, and set-up the Application on your Mobile Devise in order to activate your subscription to the Services (“Subscription”). Upon your payment of the Subscription Rate (defined in subsection (ii) below) for the first Subscription Period (defined in Section 3.A), your Subscription will be “Activated.”
(ii) You must provide a valid payment method in order for us to Activate your Subscription and continue to provide the Services to you during each Subscription Period (defined in Section 3.A). The rate to be charged for the Subscription during each Subscription Period (“Subscription Rate”) is subject to change from time-to-time. Upon conclusion of each Subscription Period, your account will automatically renew for another Subscription Period of equal length, and your payment method on file, if any, will be charged the then-current Subscription Rate, unless your Subscription is cancelled in accordance with the cancellation procedures described herein.
(iii) By providing payment account information to us, you represent that you are an authorized user of such payment account.
- B. Your Payment Obligations. Payment must be made in U.S. Dollars and is due in advance. We do not accept gift cards issued by Visa, MasterCard, American Express or Discover for recurring payment plans; these types of cards may only be used for one-time payments. Your outstanding balance is due in full at the start of each Subscription Period. We expect you to pay your account balance on time. Undisputed portions of your account must be paid by the due date to avoid possible deactivation of the Services. No “payment in full” notation or other restrictive endorsement written on your payments will restrict our ability to collect all amounts owing to us. If you are delinquent in any payment to us, we reserve the right to suspend or terminate your Subscription, revoke your license to use the Application, deactivate your System, and report any late payment or non-payment to credit reporting agencies. If your credit, bank or debit card provider refuses a charge or an automated withdrawal, we may terminate or suspend the Service. If you object to any fees or charges for services billed by or through us, you must tell us in writing within 60 days after the fee or charge is incurred (unless the law does not allow a limit or requires a longer period), OR YOU WILL AUTOMATICALLY WAIVE THE DISPUTE. WE MAY RECEIVE UPDATED CREDIT CARD INFORMATION FROM YOUR CREDIT CARD ISSUER. Your credit card issuer may give you the right to opt out of the update service. You are responsible for paying directly to all Service Providers any charges for services furnished by them that are not expressly covered by your Service Plan.
- C. Taxes and Other Fees. You promise to pay all taxes, fees, and surcharges charged to you by us. We may not tell you in advance of changes to these items. We may charge additional fees related to our costs (or the costs of our Service Providers). Such charges are subject to change.
- 3. SERVICE DURATION AND CANCELLATION.
- A. Duration. Your Subscription starts immediately on the date of Activation (“Activation Date”) and continues for a period of 30 days (“Initial Subscription Period”). On the last day of the Initial Subscription Period, and last day of each Subscription Period thereafter (each a “Renewal Date”), this Agreement will automatically renew for an additional period of 30 days (each a “Renewal Subscription Period”), unless this Agreement is earlier terminated in accordance with the termination provisions hereof. References herein to a “Subscription Period” refers either to the Initial Subscription Period or to the then-current Renewal Subscription Period, as applicable.
- B. Your Cancellation and Suspension Rights. You can cancel or suspend your Subscription at any time by logging into the Application and adjusting your settings, or by contacting Navico’s customer service phone number (800-628-4487). DELETING THE APPLICATION, DISABLING THE SYSTEM, OR REMOVING POWER FROM THE SYSTEM WITHOUT FOLLOWING THE CANCELLATION OR SUSPENSION STEPS DESCRIBED IN THE PREVIOUS SENTENCE DOES NOT OPERATE TO CANCEL OR SUSPEND YOUR SUBSCRIPTION. UNLESS YOU CANCEL OR SUSPEND YOUR SUBSCRIPTION AS INDICATED IN THIS AGREEMENT, YOUR SUBSCRIPTION WILL REMAIN ACTIVE IN ACCORDANCE WITH THESE TERMS. EVEN IF YOU CANCEL OR SUSPEND YOUR SUBSCRIPTION, NAVICO MAY STILL COLLECT DATA: (i) FROM YOUR MOBILE DEVICE FOR AS LONG AS THE APPLICATION IS INSTALLED ON YOUR MOBILE DEVICE, AND (ii) FROM YOUR SYSTEM FOR AS LONG AS THE SYSTEM BATTERY IS CAPABLE OF TRANSMITTING DATA.
IF YOUR SYSTEM IS LOST, STOLEN, SOLD OR OTHERWISE TRANSFERRED, YOU MUST CONTACT US TO CANCEL YOUR SUBSCRIPTION OR YOU WILL REMAIN RESPONSIBLE FOR THE PAYMENT OBLIGATIONS FOR YOUR SUBSCRIPTION UNDER THESE TERMS.
If you cancel or suspend your Subscription or if your Subscription is cancelled under these Terms, we have a right to terminate your access to, and use of, the Application and the Services as of the cancellation date. You may be required to pay a reactivation fee if you subsequently elect to restart use of the Application and the Services.
- C. Cancellation Timing. A requested cancellation or suspension, regardless of when requested, will take effect on the last day of the then-current Subscription Period. Thereafter, your account will be deactivated and your access to the Application and the Services will terminate. A requested cancellation or suspension will not take effect during an active Subscription Period and you are not entitled to a refund of any fees paid for the then-current Subscription Period.
IN THE UNLIKELY EVENT THAT WE CEASE PROVIDING SERVICES FOR ANY REASON, WHETHER AS A RESULT OF A LIQUIDATION, BANKRUPTCY, OR OTHERWISE, ALL PREPAID SUBSCRIPTIONS WILL BE TREATED AS NONREFUNDABLE.
- D. Our Cancellation and Suspension Rights.
(i) We reserve the right to cancel your Subscription at any time for any reason in our sole discretion. If we cancel your Subscription without cause, we will give you notice thirty (30) days prior to the effective date of cancellation after which your account will be deactivated, and your access to the Application and the Services will terminate. We may also cancel your Subscription and terminate access to the Application and the Services without prior notice if your Vessel, the System, or other equipment attached to your Vessel operates in a manner that creates a nuisance to us or any Service Provider. In either of these cases, we will refund amounts you pre-paid directly, if any, on a pro-rata basis, less any applicable fees, for any days remaining in the then-current Subscription Period which follow the date your Subscription was terminated by Navico.
(ii) We may also cancel your Subscription and terminate your access to the Application and the Services without prior notice to you for any good cause, including but not limited to if you breach any part of this Agreement; if you do not pay amounts that are due, interfere with our efforts to provide Service, or interfere with our business; or if your System or the Application is used for illegal or improper purposes. If your Subscription is terminated for good cause, we will not refund prepaid or unused portions of your Subscription Rate. Whether we permit you to reactivate your Subscription again will be entirely up to us.
(iii) We may suspend your Subscription for any of the same reasons we may cancel them. We can also suspend the Services for network or system maintenance or improvement; if there is network congestion; or if we suspect the System or the Application is being used for any improper purpose.
- 4. TRANSFERRING YOUR SERVICE. Your Subscription is not transferrable to another System or to the account of another person.
- 5. CHANGES TO THIS AGREEMENT. WE RESERVE THE RIGHT TO CHANGE THE TERMS OF THIS AGREEMENT AT ANY TIME. ANY CHANGES WILL BE EFFECTIVE UPON POSTING OF THE REVISIONS ON THE WEBSITE (navico.com) REFLECTING THE NEW EFFECTIVE DATE. This includes but is not limited to changing the prices or services provided. IF WE MAKE ANY MATERIAL CHANGES TO THIS AGREEMENT THAT, IN OUR SOLE JUDGMENT, WOULD HAVE AN ADVERSE EFFECT ON YOUR USE OF THE SERVICE, OR IF ANY SUCH CHANGE MATERIALLY AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT, WE WILL MAKE REASONABLE EFFORTS TO PROVIDE YOU WITH NOTICE OF SUCH CHANGE, WHICH MAY INCLUDE NOTICE BY ELECTRONIC MAIL. We will notify you of any other changes by publishing a notice of the change or a revised version of these Terms on the Navico website. YOU MAY CANCEL YOUR SUBSCRIPTION OR AGREE TO THE CHANGE. IF YOU DO NOT CANCEL YOUR SUBSCRIPTION WITHIN THIRTY (30) DAYS OF THE DATE OF THE NOTICE, THEN YOU WILL BE AGREEING TO THE CHANGE AND IT WILL AUTOMATICALLY BECOME PART OF THIS AGREEMENT. YOU SHOULD FREQUENTLY REVIEW THIS AGREEMENT (INCLUDING THE EFFECTIVE DATE) AND APPLICABLE POLICIES FROM TIME TO TIME TO UNDERSTAND THE TERMS THAT APPLY TO YOUR USE OF THE SERVICE. In the event of any potential conflict between this Agreement and the terms of any offer for Services, this Agreement will govern. You can obtain a copy of the Terms in effect at the time, online at navico.com.
- 6. SPECIAL INFORMATION ABOUT SERVICE AND SYSTEM LIMITATIONS.
- A. Availability. Services are available wherever the System is in a place where cellular coverage provided by the applicable Service Provider(s) is available, which may vary from time to time. Your Mobile Device must have cellular coverage, network capacity, and reception (all provided by your own cellular network service provider) in order for the Application to display up-to-date information. Many of the Services and features of the Application work using wireless communication networks and/or the Global Positioning System (“GPS”) satellite network. NOT ALL SERVICES AND/OR FEATURES OF THE APPLICATION ARE AVAILABLE EVERYWHERE, PARTICULARLY IN REMOTE OR ENCLOSED AREAS, OR ON ALL VESSELS, AT ALL TIMES. The area in which you are boating may affect the type or quality of Services that we can provide to you, including but not limited to routing service. Additionally, some Services or features of the Application may not be fully available if the GPS system is not working, if the GPS signals are obstructed, or if the GPS is not compatible with your System. Certain programming limitations of the GPS may impair our ability to determine your Vessel’s precise location.
- B. Vessel and Equipment. The System receives GPS signals and communicates with Navico and its Service Partners via communications networks. YOUR VESSEL MUST HAVE A WORKING ELECTRICAL SYSTEM (INCLUDING ADEQUATE BATTERY POWER) FOR THE SYSTEM TO OPERATE. Navico may not be able to provide the Services if your System is not properly installed or you have not maintained it and your Vessel is not in good working order and in compliance with all government regulations. If you or someone with access to your Vessel turns off or unistalls the System device, certain data may continue to be transmitted, but the Application will not work. If you try to add or modify any equipment or software in your Vessel, including the System, the Application may not work and we may terminate your Subscription. Your System needs to be compatible with BoatConnect.
- C. Geography and Environment. There are other problems, such as those relating to geography and/or environment, we cannot control that may prevent us from providing Services to you at any particular time or place, or that may impair the quality of the Services.
- D. Maps and Navigation. The map images and vessel tracking data displayed on Application is based on map information available to us from third-parties, it is not intended to be used for Vessel navigation. Navico recommends that you navigate by a mapping and charting system intended for marine navigation. These products contain important navigational aids and markings needed to navigate a vessel.
- E. Outside Our Control. Navico is not responsible for any delay or failure in performance of the Services or the Application if such failure or delay could not have been prevented by reasonable precautions taken by Navico. Additionally, Navico is not responsible if such failure or delay is caused by acts of nature, or forces or causes beyond our reasonable control. Examples include public utility electrical failure, acts of war, government actions, terrorism, civil disturbances, labor shortages or difficulties (regardless of cause), tornadoes, blizzards, or equipment failures including Internet, computer, telecommunication or other equipment or technology failures.
- 7. SPECIAL NOTICES.
- A. Content Rights. All programming, text, software (including source and object codes), information, visual, oral or other digital material, and all other content of any description included in the Application, the Services, and/or in the System (collectively, the “Content”) and all worldwide copyrights, trademarks, service marks, patents, patent registration rights, trade secrets, know- how, database rights, and all other rights in or relating to the Content (collectively, the “Intellectual Property”) are owned by us or are the property of our licensors and suppliers who have given us permission to use it. You promise not to use any content you receive through the Application or the System, except as expressly authorized by us and for no other purpose. You cannot license, lease, sell, resell, have licensed, have leased, have sold or resold, or otherwise transfer or convey any of it or use it for commercial purposes. You agree you will not copy, store, reproduce, distribute, modify, display, publish, perform, transmit, broadcast, or create derivative works from the Content.
- B. Software, Hardware and Equipment Updates. The Application and the System involves software that we may need to change from time to time. We may do this remotely without notifying you first. You agree to allow this to be done remotely without your consent. Such changes may affect or erase data you have stored on the Application, or the System in your Vessel. We are not responsible for any lost data. You do not own the BoatConnect software or the System software or acquire any rights to use, modify, or reverse engineer the BoatConnect software or the System software on your own.
- C. Telecommunications/GPS Changes. The Application and the System use digital wireless telecommunications technology and GPS technology that are outside of our control. Telecommunications technologies have been known to change over time, resulting in the obsolescence of certain telecommunications networks. If the telecommunications technology or GPS technology changes in a way that results in an incompatibility of those technologies with your System or your Mobile Device, then your System and the Application may not work, and we may be required to cancel your Subscription.
- D. Wireless Carriers. Navico contracts with one or more Service Providers (individually or collectively, the “wireless carrier”) to provide cellular service to the System during your Subscription Periods. You have no rights in the wireless phone number or other communications number or address or IP address assigned to your System. We can change the number at any time. As a condition to providing wireless service, the wireless carrier requires that you agree to the terms in this section. You agree that you have no contractual relationship whatsoever with the wireless carrier and that you are not a third-party beneficiary of any agreement between Navico and any wireless carrier. IN ADDITION, YOU AGREE THAT THE WIRELESS CARRIER HAS NO LEGAL OR EQUITABLE LIABILITY OR OTHER LIABILITY OF ANY KIND TO YOU.
- 8. SPECIAL INFORMATION AND AGREEMENTS ABOUT CERTAIN FEATURES.
- A. Security Sensor and Other Vessel Notifications That May Require Emergency Responses. The System is designed to detect changes onboard the Vessel and report those changes to you through the Application. The System should not be depended on as the Vessel’s emergency warning system. You understand and agree that we cannot assure you, or make any guarantees, about the manner or timeliness of messages received from a Vessel (through the System) that are emergency in nature.
- B. Stolen Vessel Locator. We do not provide stolen Vessel location services. However, if a Vessel is stolen the System may be useful for the discovery of the Vessel’s whereabouts. For your safety and the safety of others, only you or someone you have authorized as your agent may request stolen Vessel location information from Navico. We will provide Vessel location information about stolen Vessels only to the police or an authorized third party such as a government entity pursuant to a valid court order or other official governmental action. We cannot guarantee that we will find it. We also are not required to try to find your Vessel for the purpose of locating a person.
- C. Content-Based Services. The information available via the content-based features of the Application is limited to that information which is available in the databases of the Service Providers selected by us, which may or may not be complete or accurate at all times.
- 9. YOUR RESPONSIBILITIES.
- A. Passwords/PINs. To access and use the Services, you must create a user account through the Application with a unique user I.D. and password. You promise to be fully responsible for the protection of your password/PINs. Anyone who has access to your password or PINs may be able to access the Application and the Services through your Mobile Device. Neither we nor any Service Provider has any obligation to inquire about the authority of anyone using your password/PINs or other information that can be used to identify your account to request Services for your Vessel. YOU HAVE THE OBLIGATION TO PROTECT YOUR USERNAME, PASSWORD AND PIN FROM UNAUTHORIZED USE.
- B. Proper Use of the Services. You are responsible for your compliance with all regulations, ordinances and other laws applicable to your Vessel. You promise not to use the Application or the System for any fraudulent, unlawful, or abusive purpose, or for any purpose that interferes with our provision of Services to you or to our other customers. You promise you will not abuse or do anything to damage our business operations, services, reputation, employees or facilities. If you do any of these things, you agree you will be responsible for any costs, losses, damages or other amounts anyone else claims from us, plus any expenses, any of which result in whole or in part from that use, misuse, or your actions or omissions.
- C. Other Users/Occupants of Your Vessel. You promise to educate and inform all users and occupants of your Vessel about the Application, the Services, the System, and their respective limitations.
YOU, AS THE PRIMARY SUBSCRIBER, ARE SOLELY RESPONSIBLE FOR ANY USE OF SERVICES CONCERNING YOUR VESSEL, EVEN IF YOU ARE NOT THE ONE USING IT, AND EVEN IF YOU LATER CLAIM THE USE WAS NOT AUTHORIZED. YOU ARE ALSO SOLELY RESPONSIBLE FOR THE SERVICES REQUESTED BY YOU, OR BY ANYONE USING YOUR VESSEL, THROUGH THE APPLICATION.
Neither we nor any Service Provider has any obligation to inquire about the authority of anyone using your Vessel. If you or another operator or an occupant of your Vessel uses the Application or the System to commit a crime or for another improper purpose, you will be responsible for any damages incurred by any of us as a result of such use.
- 10. PRIVACY.
- B. Monitoring and Tracking. We or our Service Providers may monitor and track data transmitted from your System and the Application to Navico, as well as any data transmitted between our and their service centers and you or others contacting the service centers (telephonically, electronically, or otherwise) to discuss your account outside of the Vessel. YOU CONSENT, ON BEHALF OF YOURSELF, ALL OTHER OPERATORS AND/OR OCCUPANTS OF YOUR VESSEL, AND ANYONE ENGAGED IN A CONVERSATION WITH A SERVICE PROVIDER (TELEPHONICALLY, ELECTRONICALLY, OR OTHERWISE) ABOUT YOUR VESSEL OR YOUR ACCOUNT, TO THE MONITORING AND RECORDING OF ALL TRANSMISSIONS BETWEEN THE SERVICE CENTERS AND SUCH PERSONS, AND YOU RELEASE US AND ANY THIRD PARTY FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES AND LOSSES THAT MAY RESULT FROM ANY SUCH MONITORED AND/OR RECORDED TRANSMISSIONS. Data transmissions may be shared with third parties. We may be legally required to provide location data and other information obtained through the Application, the System, or features to law enforcement agencies. We may also monitor the location of or other information about the Vessel, including without the occupants’ knowledge, in the performance Services you request us to provide.
- 11. NO WARRANTIES. Navico may, depending on the particular System, provide a limited pass-through warranty on the System which is installed in your Vessel, BUT SUCH LIMITED PASS-THROUGH WARRANTY DOES NOT COVER SERVICES OR THE APPLICATION. In addition, Navico cannot promise uninterrupted or problem-free Services, and cannot promise that the data or information provided to you will be error-free. Some of the Services are provided by the Service Providers. Navico is not responsible for the provision of services by the Service Providers. ALL DATA AND INFORMATION IS PROVIDED TO YOU ON AN “AS IS” BASIS. NEITHER WE, NOR ANY THIRD PARTY, MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, ABOUT THE SYSTEM, THE APPLICATION, OR ABOUT ANY DATA OR INFORMATION OR SERVICES PROVIDED THROUGH OR IN CONNECTION WITH IT. THIS MEANS, AMONG OTHER THINGS, NO WARRANTIES OF CONTENT, QUALITY, ACCURACY, TIMELINESS, COMPLETENESS, CORRECTNESS, RELIABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH WARRANTIES ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY THIS AGREEMENT.
- 12. LIMITATIONS OF LIABILITY. YOU AND WE ARE EACH WAIVING IMPORTANT RIGHTS. UNLESS FORBIDDEN BY LAW IN A PARTICULAR INSTANCE, WE EACH AGREE AS FOLLOWS:
- A. NAVICO WILL NOT BE LIABLE FOR THE ACTIONS OR INACTIONS OF ANY SERVICE PROVIDER WE CONTACT FOR YOU OR YOUR VESSEL, OR FOR OUR INABILITY TO CONTACT ANY SERVICE PROVIDER IN ANY PARTICULAR SITUATION.
- B. NAVICO WILL NOT BE LIABLE TO YOU FOR (1) ANY INJURIES TO PERSONS OR PROPERTY ARISING OUT OF OR RELATING TO YOUR OR THE OCCUPANT’S OR YOUR VESSEL’S USE OF THE SYSTEM, THE SERVICES, OR THE APPLICATION, (2) ANY DAMAGES ARISING OUT OF OR RELATING TO THE INSTALLATION, REPAIR, OR MAINTENANCE OF THE SYSTEM OR THE APPLICATION, OR (3) ANY DAMAGES RESULTING FROM FAILURE OF THIRD PARTY DEVICES CONNECTED TO THE APPLICATION OR THE SYSTEM OR OTHERWISE ONBOARD THE VESSEL.
- C. THE MAXIMUM AGGREGATE LIABILITY OF NAVICO AND ANY OTHER SERVICE PROVIDER TO YOU UNDER ANY THEORY (INCLUDING BUT NOT LIMITED TO FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, PERSONAL INJURY, OR PRODUCTS LIABILITY) IS LIMITED TO THE GREATER OF (I) $100, OR (II) THE TOTAL AMOUNT PAID BY YOU FOR THE PORTION OF SERVICES GIVING RISE TO THE CLAIM DURING THE SIX (6) MONTHS PRECEDING THE DATE YOUR CLAIM AROSE. YOU AGREE THAT NONE OF US -- NAVICO NOR ANY SERVICE PROVIDER -- WOULD HAVE AGREED TO PROVIDE SERVICES TO YOU IF YOU DID NOT AGREE TO THIS LIMITATION. THIS AMOUNT IS THE SOLE AND EXCLUSIVE LIABILITY TO YOU OF NAVICO AND ANY OTHER THIRD PARTY BENEFICIARIES, AND IS PAYABLE AS LIQUIDATED DAMAGES AND NOT AS A PENALTY.
- D. YOU CANNOT RECOVER (1) PUNITIVE OR EXEMPLARY DAMAGES, (2) TREBLE, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES, OR (3) ATTORNEY’S FEES. YOU CANNOT RECOVER THESE TYPES OF DAMAGES OR FEES FROM ANY THIRD PARTY BENEFICIARY EITHER. YOU WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY CLAIM FOR DAMAGES OTHER THAN DIRECT, ACTUAL, COMPENSATORY DAMAGES AS LIMITED IN THIS AGREEMENT.
- E. WE HAVE NO LIABILITY FOR SERVICE INTERRUPTIONS OF THIRTY (30) DAYS OR LESS. TO RECEIVE SERVICE CREDIT FOR LONGER INTERRUPTIONS, YOU MUST NOTIFY US WITHIN SIXTY (60) DAYS AFTER THE TIME WHEN THAT SERVICE INTERRUPTION STARTED. EXCEPT FOR ANY CREDITS PROVIDED VOLUNTARILY BY US AS DESCRIBED ABOVE, NO ONE IS LIABLE TO YOU FOR DROPPED CONNECTIONS OR INTERRUPTED SERVICE, OR FOR PROBLEMS CAUSED BY OR CONTRIBUTED TO BY YOU, BY ANY THIRD PARTY, WATER WAY OBSTRUCTIONS, BRIDGES, NETWORK CONGESTION, WEATHER, OR ANY OTHER THINGS WE OR OUR SERVICE PROVIDERS ARE UNABLE TO CONTROL.
- F. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, YOU EXCUSE ANY NON- PERFORMANCE BY US OR ANY SERVICE PROVIDER CAUSED IN WHOLE OR IN PART BY AN ACT OR OMISSION OF A THIRD PARTY, OR BY ANY EQUIPMENT FAILURE, ACT OF GOD, NATURAL DISASTER, STRIKE, EQUIPMENT OR FACILITY OR SERVICE SHORTAGE OR SERVICE OUTAGE, OR OTHER CAUSES BEYOND THE CONTROL OF NAVICO OR ANY SERVICE PROVIDER.
- G. YOU AGREE THAT NEITHER NAVICO NOR ANY SERVICE PROVIDER WHO SENDS YOU DATA OR INFORMATION THROUGH THE APPLICATION IS LIABLE FOR ANY ERRORS, DEFECTS, PROBLEMS, OR MISTAKES IN THAT DATA OR INFORMATION.
- H. NAVICO WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR INJURIES TO PERSONS OR PROPERTY ARISING FROM YOUR USE OF THE APPLICATION, THE SYSTEM, OR THE SERVICES, OR THE INSTALLATION, REPAIR OR MAINTENANCE OF THE APPLICATION OR THE SYSTEM. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS NAVICO AND ITS OFFICERS, EMPLOYEES AND AFFILIATES FROM AND AGAINST ANY AND ALL COSTS, EXPENSES, ACTS, ACTIONS OR CLAIMS, ARISING OUT OF OR IN CONNECTION WITH THE ACTIVITIES CONTEMPLATED BY THIS AGREEMENT, WHETHER BROUGHT BY YOU OR THIRD PARTIES.
- I. You agree that the limitations of liability and indemnities in this Agreement will survive even after this Agreement has ended. These limitations of liability apply not only to you, but to anyone using your Vessel, to anyone making a claim on your behalf, and to any claims made by your family, employees, customers, or others arising out of or relating to your Services or the System.
- 13. YOUR INSURANCE OBLIGATIONS. The Services are intended as a convenience. The payments you make for use of the Application and the Services are not related to the value of your Vessel or any property in it, or the cost of any injury to or damages suffered by you or anyone else as a result of the operation of your Vessel. We are not an insurance company. You promise you will obtain and maintain appropriate insurance covering personal injury, loss of property, and other risks. FOR YOURSELF AND FOR ANYONE ELSE CLAIMING UNDER YOU, YOU HEREBY RELEASE AND DISCHARGE NAVICO, THE SERVICE PROVIDERS, AND EACH OF THEIR PARENTS, AFFILIATES, AND SUBSIDIARIES, AND THE RESPECTIVE OFFICERS, DIRECTORS, AND EMPLOYEES OF ANY OF THEM FROM AND AGAINST ALL HAZARDS COVERED BY YOUR INSURANCE. NO INSURANCE COMPANY OR INSURER WILL HAVE ANY RIGHT OF SUBROGATION AGAINST NAVICO OR THE SERVICE PROVIDERS.
- 14. YOUR RESPONSIBILITY FOR ANY THIRD PARTIES’ CLAIMS. YOU AGREE THAT YOU WILL BE RESPONSIBLE FOR ANY AMOUNT ANYONE ELSE CLAIMS FROM NAVICO OR THE SERVICE PROVIDERS (OR THE PARENTS, AFFILIATES, AND SUBSIDIARIES OF EACH, OR THE RESPECTIVE OFFICERS, DIRECTORS, AND EMPLOYEES OF ANY OF THEM) PLUS ANY EXPENSES RESULTING FROM ANY CLAIM, DEMAND OR ACTION, REGARDLESS OF THE NATURE OF THE CAUSE OF THE CLAIM, DEMAND, OR ACTION ALLEGING LOSS, COSTS, EXPENSES, DAMAGES, OR INJURIES (INCLUDING INJURIES RESULTING IN DEATH) ARISING OUT OF OR IN CONNECTION WITH (1) THE ACTIVITIES CONTEMPLATED BY THIS AGREEMENT, WHETHER BROUGHT BY YOU, THE OCCUPANTS OF YOUR VESSEL, YOUR EMPLOYEES, OR THIRD PARTIES, EVEN IF DUE TO THE NEGLIGENCE OF ANY OF NAVICO OR ANY OF THE SERVICE PROVIDERS; (2) THE USE OR POSSESSION OF DATA OR INFORMATION PROVIDED IN CONNECTION WITH SERVICES; (3) CLAIMS FOR LIBEL, SLANDER, OR ANY PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, ARISING OUT OF OR RELATED IN ANY WAY DIRECTLY OR INDIRECTLY TO THIS AGREEMENT; OR (4) THE USE, FAILURE TO USE, OR INABILITY TO USE THE SERVICES, EXCEPT WHERE THE CLAIMS RESULT FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF NAVICO OR ANY OF THE SERVICE PROVIDERS. IN ADDITION, IF YOU HAVE AUTHORIZED CHARGES FOR AMOUNTS DUE AGAINST YOUR CREDIT, DEBIT OR BANK CARD ACCOUNT OR OTHER SIMILAR ACCOUNT BY GIVING US A CARD OR ACCOUNT NUMBER, THEN YOUR AGREEMENT IN THIS SECTION EXTENDS TO CLAIMS, EXPENSES, LIABILITIES, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OR OWNERSHIP OF THE CREDIT OR DEBIT CARD ACCOUNT, OR OTHER SIMILAR PAYMENT ACCOUNT, OR FROM THE ISSUER’S REFUSAL TO PAY AMOUNTS CHARGED TO SUCH ACCOUNT.
We are required to inform you that Navico has agreed to indemnify and hold harmless its Service Providers and any underlying carriers who supply services to Service Providers, and all respective employees and agents, against any and all claims, including without limitation claims for libel, slander, infringement of copyright, or personal injury or death, arising in any way directly or indirectly in connection with Navico’s agreements with those Service Providers or in connection with the use, failure to use, or inability to use an access telephone number, IP address, or other similar identifying point of access. This indemnity survives the termination of Navico’s agreements with its Service Providers. If Navico is required to indemnify its Service Providers pursuant to the terms of its agreements with those Service Providers, you agree that you are proportionally responsible to Navico for its indemnity obligation.
- 15. RESOLVING DISPUTES.
- A. Arbitration. We and you agree that any dispute between us will be resolved by binding arbitration. Arbitration is not a court proceeding. The rules of arbitration differ from the rules of court. In arbitration, a dispute is resolved by an arbitrator, or a panel of arbitrators, instead of by a judge or jury. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: (i) claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (ii) claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); (iii) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and (iv) claims that may arise after the termination of this Agreement.
You understand and agree that the parties would have had a right or opportunity to litigate disputes through a court and, by entering into this Agreement, accessing or using the Services, you and we are each waiving the right to a trial by jury or to participate in a class action. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Trade Commission. Such agencies can, if the law allows, seek relief against us on your behalf. References to “we” or “us” in this Section 15 include the Third Party Beneficiaries, and references to “you,” and “we” or “us” in this Section 15 include our respective subsidiaries, Affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Application or System under this or prior agreements between us.
In order to expedite and control the cost of disputes, you agree that any legal or equitable claim relating to the Service or your Subscription or this Agreement (a “Claim”), will be resolved as follows:
(i) Informal Claim Resolution. To initiate an informal resolution to a Claim, you must send by first class mail a written Notice of Dispute (“Notice”) to Navico Inc. Copies of the Notice should be sent to the following address: Navico, Inc., 4500 S. 129th East Avenue, Suite 200, Tulsa, Oklahoma 74134, Attn: Global Legal Department. Neither of us may start a formal proceeding for at least sixty (60) days after one of us notifies the other of a Claim in writing. If we initiate a Claim, we will send our notice to the billing address on file with us. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought.
(ii) Formal Claim Resolution. If we cannot resolve a Claim informally, including any claim between us, and any claim by either of us against any agent, employee successor, or assign of the other, including to the full extent permitted by applicable law, third parties who are not party to this Agreement whether related to this Agreement or otherwise, including past, present, and future Claims and disputes, and including any dispute as to the validity or applicability of this arbitration clause, then these Claims shall be resolved, upon election by either party, exclusively and finally by binding arbitration. Private arbitration will be conducted by a neutral arbitrator and administered by the American Arbitration Association (“AAA”) in accordance with its commercial arbitration rules, as modified by this Agreement. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. During the arbitration, the amount of any settlement offer made by us or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or we are entitled. The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. This arbitration provision shall survive termination of this Agreement.
(iii) Small Claims. Instead of proceeding to arbitration, either you or we have the option to pursue a Claim in small claims court (or the equivalent) so long as the Claim (1) remains in that court, and (2) is made solely on our behalf (if brought by us) or on your behalf. However, if that claim is transferred or appealed to a different court, we reserve our right to elect arbitration.
(iv) Class Actions and Severability. If either party elects to resolve a claim by arbitration, that Claim shall be arbitrated on an individual basis. There shall be no right or authority for any claims to be arbitrated on a class action basis or on bases involving Claims brought in a purported representative capacity on behalf of the general public, other subscribers or other persons similarly situated. No Claim submitted to arbitration is heard by a jury or may be brought as a private attorney general. You do not have the right to act as a class representative or participate as a member of a class of claimants with respect to any Claim submitted to arbitration (“Class Action Waiver”). The parties acknowledge and agree that under no circumstances will a class action be arbitrated. If any portion of this arbitration agreement or the Class Action Waiver is limited, voided or cannot be enforced, then the entirety of this arbitration provision (except for this sentence) shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver, that portion will be severed, and the rest of the arbitration agreement will continue to apply. “Claim” does not include any challenge to the validity and effect of the Class Action Waiver, which must be decided by a court. If this entire agreement to arbitrate shall be null and void, then the parties agree that any actions shall be brought in the State or Federal courts of New York, New York.
(v) Binding Effect. This arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act (“FAA”), and not by any state law concerning arbitration. In the arbitration proceeding, the arbitrator must follow applicable law, and any award may be challenged, as set forth in the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award. The arbitrator’s decision is final and binding on all parties and may be enforced in any federal or state court with jurisdiction.
- B. Governing Law . To the fullest extent permitted by law and except as explicitly provided otherwise, this Agreement and any disputes arising out of or relating to it will be governed by the laws of the State of Oklahoma. If for some reason these arbitration requirements do not apply, or a claim proceeds in small claims court, we each waive any trial by jury and a judge will decide any and all disputes.
- C. Time Limits. EXCEPT WHERE PROHIBITED BY LAW, YOU ARE NOT ALLOWED TO BRING ANY CLAIM AGAINST NAVICO MORE THAN ONE YEAR AFTER THE CLAIM ARISES.
- 16. GENERAL LEGAL INFORMATION.
- A. Communicating with Each Other. You can contact us by phone: 800-628-4487; or by mail: Navico, Inc., 4500 S. 129th East Avenue, Suite 200, Tulsa, Oklahoma 74134. ANY WRITTEN NOTICE FROM YOU REQUIRED BY THIS AGREEMENT WILL BE CONSIDERED GIVEN WHEN RECEIVED AT THE ADDRESS IN THIS PARAGRAPH. ANY WRITTEN NOTICE FROM US REQUIRED BY THIS AGREEMENT WILL BE CONSIDERED GIVEN WHEN WE SEND IT BY EMAIL TO ANY EMAIL ADDRESS YOU HAVE PROVIDED TO US, OR TWO DAYS AFTER WE MAIL IT TO YOU AT THE MOST CURRENT BILLING ADDRESS WE HAVE ON FILE FOR YOU.
- B. Others Covered by this Agreement. EACH OF THE PERSONS/ENTITIES LISTED IN THE THIRD PARAGRAPH OF THESE TERMS IS BOUND BY THIS AGREEMENT. YOU AGREE THAT YOU WILL MAKE ALL OF THE OCCUPANTS OF YOUR VESSEL, WHETHER PASSENGERS, GUESTS OR OPERATORS OF YOUR VESSEL, AWARE OF OUR RIGHTS AND SUBJECT TO THE LIMITATIONS OF THIS AGREEMENT.
- C. Our Relationship. This Agreement does not create any fiduciary relationships between you and us. It also does not create any relationship of principal and agent, partnership, or employer and employee.
- D. Assignment. We can assign this Agreement or your obligations to pay under it in whole or in part to anyone we choose. You cannot assign this Agreement or your obligations to anyone else without our prior written consent and any attempted assignment in violation of this provision shall be void.
- E. Final Provisions. This Agreement (which includes, without limitation, these Terms and any other BoatConnect Documents incorporated herein by reference) is the entire agreement between you and us. This Agreement supersedes all other agreements or representations, oral or written, between us, past or present. In the event of a conflict between any provision contained in these Terms and any provision of any other BoatConnect Documents incorporated herein, the provision contained in these Terms shall take precedence. This Agreement will not be presumptively construed for or against either party. Section titles used in these Terms are for convenience only. If any part of this Agreement is considered invalid by a court or arbitrator, the rest of it will remain enforceable. Even after this Agreement has ended, its provisions will govern any disputes arising out of or relating to it (unless it has been replaced by a new agreement between us). It will also be binding on your heirs and successors and on our successors and assigns. No waiver of any part of this Agreement, or of any breach of it, in any one instance will require us to waive any other instance or breach. IN SOME CIRCUMSTANCES WE MIGHT DECIDE TO PROVIDE YOU SERVICE VOLUNTARILY EVEN IF YOU WOULD NOT OTHERWISE QUALIFY. THIS WILL NOT BE DEEMED A WAIVER OR REQUIRE US TO DO SO AGAIN. YOU AGREE WE WILL NOT BE LIABLE FOR ANYTHING RESULTING FROM OUR PROVISION OF SUCH SERVICE.
- F. Export Restrictions. You may not export or re-export the Application or the Services: (a) into, or to a national or resident of, any country to which the United States has embargoed goods; or (b) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By installing or using the Applications and the Services, you are representing and warranting that you are not located in, under the control of, or a national or resident of, any such country on any such list.