Service Agreement and Policies

This Boats Group Service Agreement (the “Agreement”) is made as of the date the customer identified on the applicable Order Form (“Customer”) electronically signs the Boats Group Agreement (“Effective Date”) by and between Boats Group, LLC, with its principal offices located at 1221 Brickell Avenue, Suite 2300 Miami, FL 33131 (“Boats Group”), and the Customer. This Agreement governs Customer’s rights and obligations with respect to the Services (defined herein). For the purposes of this Agreement, “Services” shall mean the services purchased by Customer that are set forth on the applicable Boats Group order form (the “Order Form”) and any additional services that Boats Group determines may be inherent, necessary or customary in connection with the purchased services.
Conflicting Terms and Certain Definitions
1. If any terms and conditions contained in this Agreement in the Service-specific terms contained in Section 25 (Website Services Specific Provisions), Section 26 (YachtWorld Services Specific Provisions), Section 27 (YachtCloser Services Specific Provisions), Section 28 (Co-Brokerage Search Services Specific Provisions), or Section 29 (Boat Trader Services Specific Provisions) (collectively, the “Service Specific Provisions”) conflict with any terms and conditions not contained in such sections, then such conflicting terms and conditions contained in the Service Specific Provisions shall govern with respect to the Service to which the Service Specific Provisions applies.
2. If there is any conflict between any other contracts or agreements between Boats Group and Customer and this Agreement, this Agreement will supersede the terms of those contracts or agreements.
Term and Renewal. Unless otherwise changed by Boats Group or terminated in accordance with the terms of this Agreement, the term of this Agreement and the Order Form will be for an initial twelve (12) month term and will automatically renew month to month thereafter (and Customer will be billed within the first month of Service, unless it is for renewal of an already existing account, in which case the established billing cycle shall remain unchanged) unless and until terminated by Customer or Boats Group in accordance with Section 6 (Suspension or Termination). To find out current Service fees and renewal terms, please contact a Boats Group customer service representative. Customer agrees that Boats Group may change renewal terms by notifying Customer via email or notification in BoatWizard. Changes to renewal terms will be effective upon the earlier of:
1. thirty (30) days after notification or
2. the start of the next billing period following notification.
Payment. Customer must have valid ACH information or a valid debit card or credit card on file with Boats Group as an “Authorized Payment Method” in order to receive the Services.. By accepting this Agreement, the Customer authorizes Boats Group to draw invoiced amounts using the Authorized Payment Method. Customer agrees that all amounts owing are payable in U.S. dollars (unless mutually agreed by the parties). Customer will pay all fees associated with the Services according to Boats Group’s current pricing information. Unless otherwise agreed to by Boats Group in writing, Customer agrees to pay all invoices upon receipt and pay for Services in advance. Unless otherwise changed by Boats Group, set up fees will be invoiced on the Effective Date. A late payment charge of 1.5% per month, or at the highest legal interest rate, if less, on the outstanding unpaid amounts, compounded daily, will be charged on any amounts not received by the due date on the relevant invoice. Customer agrees to reimburse Boats Group for all amounts expended in collecting past-due accounts, including Boats Group’s reasonable attorneys’ fees and costs.
4.1. Customer understands and agrees to applicable surcharges in addition to the contracted membership rates. These surcharges include, but are not limited to: boats without a displayed list price. Customer understands and agrees that any applicable set up fees will be invoiced on the Effective Date. Delays in delivering products or services under this Agreement which are due in whole or in part to postponement or delinquency by the Customer may result in Boats Group billing Customer in accordance with original advertising dates as indicated by the Order Form and agreed to or determined by the Customer.
4.2. Notwithstanding anything to the contrary herein, Boats Group may change the Service fees, membership rates and surcharges by notifying Customer via email or notification in BoatWizard. Changes to Service fees, membership rates and surcharges will be effective upon the earlier of:
4.2.1. thirty (30) days after notification, or
4.2.2. the start of the next billing period following notification.
4.3. In addition, Boats Group may offer promotional rates on certain Services. Promotional rates are at all times conditioned upon compliance with the terms and conditions of this Agreement and the terms and conditions of the applicable promotion. In the event of any breach of this Agreement or the terms or conditions of the applicable promotion, Boats Group may, upon notice to Customer via email or in writing, terminate Customer’s participation in any or all promotional pricing. After the termination or expiration of promotional pricing, the fees, rates and surcharges that were adjusted pursuant to the promotion will, without notice to Customer, automatically be restored to the then-applicable Boats Group standard fees, rates and surcharges associated with the relevant Services.
4.4. All fees and charges hereunder are exclusive of any sales, use, gross receipts, value added, withholding, ad valorem or other taxes, all of which will be Customer’s responsibility. Customer will promptly reimburse Boats Group if a taxing authority determines that an additional amount of tax is due relating to the Services.
Use of Information. We reserve the right to use Customer’s information to:
1. provide, analyze, administer, enhance and personalize our services and marketing efforts, including analyzing the performance, delivery and use of services and the performance and use of the hardware and software that we use to perform services and
2. to communicate with Customer on these and other topics (including for marketing and promotional purposes) through email, telephone and or text messaging. If Customer no longer wants to receive certain communications from us via email, Customer should click the “unsubscribe” link in the applicable email. Please note that Customer cannot unsubscribe from service-related correspondence from us, such as messages relating to Customer’s account transactions.
Suspension or Termination.
1. Suspension or Termination by Boats Group. Notwithstanding any other provision of this Agreement, Boats Group reserves the right to suspend or terminate the Services, in full or in part, and to cancel this Agreement and any Order Form, in full or in part, at any time. Unless Customer has breached this Agreement or any Order Form prior to such termination, then upon termination by Boats Group, Boats Group will refund to Customer any prepaid fees for which Customer has not received corresponding Services, and the amount of any such refund will be prorated based upon the number of days of Services Customer has already received. Other than as set forth in the previous sentence, in the event of a termination by Boats Group, Boats Group will have no liability to Customer. In an event of a breach of this Agreement or any Order Form by Customer, Boats Group may, at its option, immediately terminate this Agreement and any Order Form, in whole or in part, and retain any prepaid membership and other fees that Customer has paid to Boats Group as of that date; furthermore, Boats Group may seek any and all legal remedies available to Boats Group as a result of damages from Customer’s breach. Upon Boats Group’s termination of this Agreement or any Order Form for Customer’s breach, all unpaid charges, if any, will become immediately due and payable.
2. Termination by Customer. Customer may terminate the Agreement and the Order Form in the following manner:
  1. if Boats Group receives written notice of termination at least thirty (30) days before the end of the initial twelve (12) month term, termination of the Agreement and Order Form will be effective as of the last day of such initial twelve (12) month term or
  2. if Boats Group receives written notice of termination on any day thereafter, termination of the Agreement and Order Form will be effective thirty (30) days after receipt of notice. Boats Group will continue to provide Services until the effective date of termination. Any written notice of termination must be submitted to Boats Group by email to cancellation@boats.com and must include the Customer’s name, phone number, member ID (or other identification about the account) and reason for termination. Customer agrees and acknowledges that Customer will remain responsible for all use of the Services and all fees associated with the Services in the event a notice to terminate is not received by Boats Group according to this Section.
Terms of Use and Privacy Policy. Customer hereby represents and warrants that it has read and agrees to be bound by the Terms of Use, as posted and amended from time to time on the Boats Group website at https:/www.www.boatsgroup.com/service-agreement-and-policies/, and the Privacy Policy, as posted and amended from time to time on the Boats Group website at https:/www.www.boatsgroup.com/privacy/. In the event of any conflict between the Terms and Agreement or Privacy Policy and any of the terms and conditions of this Agreement, both parties agree that the terms and conditions of this Agreement will have precedence.
Boats Group Services.
1. General Provisions. If Customer has purchased Services related to YachtWorld, Boat Trader or boats.com, which may include access to certain websites (including, but not limited to, https://www.boatwizard.com and https://www.soldboats.com), certain tools and services related to such websites (including any inventory, website advertising and management systems), then the following additional terms and conditions shall apply to such Services:
  1. All listings must be properly identified, including, without limitation, the listing type, co-brokerage type, location, price and its current availability status. The information entered into a data field must reflect a value that corresponds to that field label. The advertised price must be the price for which the boat may be purchased; it may not be an auction or bid price or suggested minimum value price.
  2. Listings must be boats for sale and properly listed on all Boats Group websites. Engines and trailers may be listed on Boat Trader if properly categorized as an engine or trailer, not as a boat. Fractional and charter boats must be properly identified. Auction boats are prohibited.
  3. Listings may only promote boat-related information, not employment, business, real estate or other opportunities.
  4. Previously-owned boats must exist and currently be for sale to be advertised on a Boats Group Site.
  5. Unauthorized use of images or text from another advertiser’s listing or website is prohibited.
  6. Customer may not brand their photos or listings with a company name or other identifying mark or method.
  7. Third party advertising or links are not allowed on listings.
  8. Customer cannot re-sell Boats Group’s advertising service. Customer cannot utilize a “Boats Group” membership for the purpose of soliciting advertising fees from owner/sellers. Any exceptions to this rule, made at Boats Group’s sole discretion, need to be approved in writing by Boats Group.
  9. Customer is responsible for the integrity, accuracy and updates to its listings as they appear on all Boats Group websites. Boats Group will not be held responsible monetarily or legally for any errors displayed on internal or external sites, whether entered by the Customer through BoatWizard or due to incorrect data being provided outside of BoatWizard.
  10. All copy, information and materials that Customer provides to Boats Group is complete, accurate, legal, non-defamatory, decent, honest and truthful.
2. Eligibility Policies.
  1. Customer warrants that Customer is in the boat sales business as a yacht broker or boat dealer, has a business license in the name of their account name and can produce it if requested.
  2. Customer warrants that if Customer is from a state/province/country that requires a license to sell boats, Customer’s broker(s) and/or salesperson(s) are properly licensed and can produce a copy of the license or license number if requested by Boats Group.
  3. Additional offices require a separate physical location with a street address accessible by the public.
  4. Only one business can be associated with each membership. Memberships cannot be shared between two or more business entities.
Reporting. To report violations of this Agreement or other Boats Group policies, Customer should email the offending dealer or broker directly and also copy Boats Group at, policies@boats.com. If the offending party does not respond by taking care of the problem within twenty-four (24) hours, forward the original violation email to policies@boats.com with the added notation that there has been no response. Customers with access to the MLS may also report violations via the MLS by selecting the “Report Listing” button. Reporting violations via the MLS will email the policies department for further investigation.
1. Reporting an untrue violation may result in action against Customer and, if Customer is an individual, Customer’s company.
2. General or vague complaints will not be investigated until more detailed information can be provided.
Passwords, Security and Customer Information. Customer agrees to keep Customer’s login credentials for the Services (such as user names and passwords) confidential. Customer is responsible for all activities that occur under all user names and passwords assigned to Customer’s account (including, without limitation, for any communications sent via the Services). Except as expressly authorized by this Agreement or any Order Form, Customer hereby agrees not to sell, transfer, loan or assign Customer’s membership or any membership rights, including, without limitation, user name and password, to any third party. Customer is responsible for maintaining the confidentiality of all user names and passwords assigned to the account and for restricting access to computers used to access Customer’s account(s) so that others may not access the password-protected portions of the Services using Customer’s user names and passwords. Customer agrees to notify Boats Group if it becomes aware of any loss, theft or unauthorized use of Customer’s user names or passwords. Customer agrees not to interfere with or disrupt the Services or servers or networks connected to the Services and to comply with all then-current requirements, procedures, policies and regulations of Boats Group and any networks connected to the Services. Customer further agrees not to use the Services for any unlawful purpose and agrees to comply with reasonable requests by Boats Group to protect the rights of Boats Group or Boats Group’s customers. It is Customer’s responsibility to keep its contact and other account information (including, without limitation, email address including their accounting email address, mailing address and telephone and facsimile numbers) current in BoatWizard. Customer agrees that all notices sent under this Agreement by Boats Group may, among other methods, be sent to Customer via email, facsimile or regular mail to the electronic or physical address or facsimile number as set forth above or the electronic mail address associated with Customer’s BoatWizard account.
Compliance. Customer represents and warrants that it shall comply with all U.S., European Union, Canada and other applicable laws and regulations relating to economic or trade sanctions (“Sanctions Laws”), and not engage in any dealings or transactions in any country or region that is the subject or target of U.S., Canadian or European Union comprehensive economic sanctions (including, without limitation, Cuba, Iran, North Korea, Sudan, Syria and the Crimea region of Ukraine) or with any individual or entity designated on any restricted party list administered under any Sanctions Laws or under any export control laws of the United States, Canada, European Union, or any relevant European Union Member State (“Export Control Laws”), including without limitation, the U.S. Department of the Treasury, Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List and the European Union Consolidated List, or with any individual or entity that is in the aggregate, fifty (50) percent or greater, owned or controlled by any such person in each case, to the extent such dealings or transactions are in violation of Sanctions Laws or Export Control Laws. If the Services include Customer listings, Boats Group reserves the right to remove any Customer listings in violation of Sanctions Laws or Export Control Laws. Listings from sanctioned countries as identified by The Office of Foreign Assets Control (OFAC) of the US Department of the Treasury may not be entered into BoatWizard, or displayed on any Boats Group entities or any other website hosted or created by Boats Group. Reference to delivery, location, origin, manufacturing, ownership or any other affiliation with or in an OFAC sanctioned country is prohibited.
Consequences. Boats Group reserves the right to take any disciplinary action, including removal of listings or termination of Services, for any failure to abide by Boats Group’s usage, reporting, compliance or other policies set forth herein or any breach of this Agreement or any Order Form.
Intellectual Property.
1. Customer Representations and Boats Group Right.
  1. Customer represents that it owns all right, title and interest (including the right to assign) in and to any text, photographs, videos, data, information or other works provided (whether directly or indirectly) by Customer to Boats Group, regardless of whether any of the foregoing relate to Customer, Customer’s business or Customer’s services (collectively, “Materials”). Customer hereby grants Boats Group a royalty-free, transferable, non-exclusive, perpetual, irrevocable license (with the right to sublicense) to collect, use, host, modify, reproduce, distribute, display, perform, copy and prepare derivative works of, the Materials throughout the universe. As a condition of Boats Group’s acceptance of the Materials, Customer hereby represents and warrants to Boats Group that:
    1. Customer has the right to grant the licenses and rights to the Materials as set forth above,
    2. the exercise of those rights by Boats Group, or the provision or use of the Materials, will not infringe or misappropriate the rights (including intellectual, trade secret, personal, contract or other proprietary rights) of any third party or violate any law, rule or regulation, and
    3. Customer has obtained all necessary consents, permissions, licenses, releases and waivers to use and provide the Materials in connection with the Services. Customer acknowledges that Boats Group has no obligation to edit, review, monitor, or oversee Materials submitted to Boats Group and Boats Group assumes no responsibility or liability relating thereto, but Boats Group reserves the right to remove any Materials at any time. In addition, upon the request of Boats Group, Customer will assist and cooperate with Boats Group in pursuing legal or other actions related to the Services, including, without limitation, with respect to the unauthorized use of the Materials.
  2. Customer agrees that as between Customer and Boats Group that Boats Group owns all rights, title and interest in and to each of its websites (including, without limitation, BoatTrader.com, YachtWorld.com, boats.com, BoatWizard.com, BoatsCentral.com SoldBoats.com and related sites at other top-level domains) and the content of each of its websites (other than the Materials), including, without limitation, copyrights, patents, trademarks, service marks, trade names, trade secrets, compilations, collective works, software (object code and source code), databases, site designs, look and feel, formats, order, coordination and arrangements of Materials, graphics and all other intellectual property and proprietary content used to provide, or resulting from, or developed in connection with the performance of the Services (collectively, “Site Content”).
  3. Customer hereby grants to Boats Group a non-exclusive license to use Customer’s name for the purpose of promoting the Site Content and Services.
  4. Customer expressly acknowledges and agrees that Boats Group may preserve and store Materials and may also disclose Materials related to the Services if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to:
    1. comply with legal processes;
    2. respond to claims that any Materials violate the rights of any entity or person; or
    3. protect the rights, property or personal safety of Boats Group, its licensors, suppliers, partners, resellers, users or the public.
Customer’s Use of Services and Site Content.
1. Following any termination of Service, all Site Content will remain the property of Boats Group and Customer will promptly destroy any copies of or references to any Site Content and remove any links established between Customer’s website (if any) and any Site Content.
2. Customer shall not use or include any obscene, pornographic, vulgar, defamatory, untruthful, inaccurate, misleading, constituting false advertising or otherwise objectionable pictures, banners, links or text or use or include any links to a competitor of Boats Group, in connection with the Services, Materials or Site Content.
3. Except as explicitly permitted in this Agreement or in writing by Boats Group, Customer agrees not to reproduce, sublicense, distribute, modify, translate, decompile, reverse engineer, create derivative works of or circumvent any mechanism or technology implemented to protect the Site Content. Customer will not remove any of the copyright or other proprietary notices of Boats Group in or affixed to Site Content.
4. Customer shall not:
  1. send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs via the Services;
  2. interfere with or disrupt the integrity or performance of the Services or the Site Content or otherwise damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services;
  3. attempt to gain unauthorized access to the Services or their related systems or networks;
  4. use or access the Services in a manner to avoid incurring fees;
  5. input, upload, transmit or otherwise provide to or through the Services, any information, data or materials that are unlawful or injurious, or that contain, transmit or activate any harmful code; or
  6. access or use the Services in violation of applicable laws.
5. Customer hereby agrees that it will not:
  1. collect, use, host, modify reproduce, distribute, perform, copy or display the Materials if those Materials were obtained from any Boats Group website through the use of a data-harvesting method (including, without limitation, robots or spiders) or through any other method or mechanism not offered or authorized as a service offered on a Boats Group website; or
  2. permit a third party to collect, use, host, modify, reproduce, distribute, perform, copy or display the Materials if those Materials were or will be obtained from any Boats Group website by using a data-harvesting method (including, without limitation, robots or spiders) or through any other method or mechanism not offered or authorized as a service offered on a Boats Group website. Customer is strictly prohibited from allowing third parties, including their authorized agents who have not obtained express written permission from Boats Group, to access Customer’s account for any purpose.
6. Customer acknowledges that Boats Group has no obligation to edit, review, monitor or oversee Materials submitted to Boats Group and Boats Group assumes no liability relating thereto. Additionally, Boats Group may remove any such Materials at any time.
Ownership.
1. Customer hereby grants Boats Group a non-exclusive, transferable, perpetual, sublicensable, worldwide right to collect and use Customer Data, including, without limitation, descriptive information, pictures and videos specifically pertaining to Customer’s businesses and services and to host and distribute such Customer Data. As used herein, “Customer Data” means all information provided to Boats Group by Customer through Customer’s use of the Services that relates to Customer’s listings, customers and vendors. Boats Group shall use Customer Data for the fulfillment of the Services provided in the Order Form and as otherwise set forth in Section 30 below and Boats Group’s Privacy Policy. Customer will otherwise own all right, title and interest in and to the Customer Data.
2. Customer agrees that it will not use or attempt to use, or authorize any third party to use or attempt to use, automated or manual means, including, without limitation, agents, robots, scripts or spiders, to extract any Boats Group content in whole or in part from any websites owned or operated by Boats Group or any of its subsidiaries or Affiliates (as defined in Section 27.3 below), except with the prior written consent of Boats Group.
3. Customer represents and warrants that:
  1. it owns Customer Data or otherwise has the right to grant the appropriate licenses to Customer Data that it provides to Boats Group; and
  2. the uploading of Customer Data on, through, or in connection with the Services (and any use made by Boats Group of the Customer Data in accordance with this Agreement) does not and will not violate the intellectual property rights, privacy or data protection rights, personal, publicity rights, contract rights or any other rights of any entity or person.
4. Customer also represents and warrants that Customer is solely responsible and liable for obtaining all necessary consents, permissions, licenses, releases and waivers from copyright owners, artist(s), actors, directors, performers, writers, producers or any other individuals who appear in the Customer Data provided to Boats Group or the results and proceeds of whose services are utilized in the Customer Data which Customer provides to Boats Group.
5. Boats Group has no obligation to edit, review, monitor or oversee Customer Data submitted to Boats Group and Boats Group assumes no responsibility or liability relating thereto. Customer acknowledges and agrees that there may be errors or omissions in the Services and Boats Group shall not be responsible for any special, incidental or consequential damages suffered by Customer resulting from errors or omissions.
6. Customer expressly acknowledges and agrees that Boats Group may preserve and store Customer Data and may also disclose Customer Data related to the Services if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to:
  1. comply with legal processes;
  2. respond to claims that any Customer Data violates the rights of any entity or person; or
  3. protect the rights, property or personal safety of Boats Group, its licensors, suppliers, partners, resellers or users and/or the public.
Force Majeure. Neither party shall be liable for any failure or delay in the performance of all or any portion of its respective obligations hereunder (other than their obligation to pay any monies owed hereunder) resulting in whole or in part from a cause or causes beyond their respective reasonable control, including, but not limited to the failure of any subcontractor or other third parties to perform, acts of God or public enemy, fires, flood, storms, earthquakes, unusually severe weather, riots, strikes, boycotts, lockouts, acts of declared or undeclared war, domestic or international terrorist attacks, epidemic, public health or safety emergency, restraints of government, power or communication line failure, disruptions to public utilities or other vital infrastructure, failure or disruption of the Internet, telecommunications facilities or third party software programs, a ruling or order of any court or agency of competent jurisdiction, damages to machinery or equipment, disruptions to transportation or change of law or regulation subsequent to the execution of this Agreement.
Indemnification. Customer agrees to indemnify, defend and hold Boats Group, its officers, directors, employees, agents, consultants and any third parties harmless from and against any and all claims, liabilities, damages, fines, penalties, costs and expenses, including reasonable attorneys’ fees, related to or arising from:
1. the use of Materials provided to Boats Group by Customer;
2. any breach or alleged breach by Customer of any of its obligations, representations, limitations or warranties contained in this Agreement;
3. Customer’s compliance or failure to comply with applicable law, rules or regulations including, without limitation, Section 25.4 below;
4. Customer’s fraud, negligence or willful misconduct;
5. Customer’s violation or alleged violation of the rights of a third party, including the infringement or alleged infringement by Customer (or Boats Group’s violation or infringement, or alleged violation or infringement, due to any Materials) of any intellectual property (i.e., patent, copyright or trademark) or misappropriation of any proprietary right or trade secret of any person or entity; and
6. if Customer has purchased website development services, any failure, error or loss incurred by Customer due to the inaccurate marketing information provided to Boats Group by any third party on behalf of Customer.
Disclaimer of Warranties. The Service, Site Content, and, if Customer has purchased Services involving the development of a website, marketing materials (as hereinafter defined) are provided “as-is” and “as available” and Boats Group makes no warranty, either express or implied, concerning the Services, the Site Content or marketing materials, as applicable, including, without limitation, warranties of merchantability, title, non-infringement or fitness for a particular purpose. Boats Group does not represent that Customer’s use of the Services or any website will be secure, timely, uninterrupted or error-free or that the Services or any website will meet Customer’s requirements or that the Services will guarantee a search results position, increase of web-related traffic, increase in sales price, leads, or inquiries, as may be applicable, or that all errors in the Services and/or documentation will be corrected or that the overall system that makes the Services available (including, but not limited to the internet, other transmission networks and Customer’s local network and equipment) will be free of viruses or other harmful components. Customer assumes all responsibility for determining whether the Services, any website, or the information generated thereby is accurate or sufficient for Customer’s purposes. Customer acknowledges that:
1. the Services may be temporarily interrupted, curtailed or degraded due to internet capacity or equipment limitations, equipment modifications, upgrades, relocations or repairs and
2. internet data is capable of being intercepted by third parties. Boats Group makes no warranties regarding the purpose or value of email or other online methods of communication inherent in or added to the Service.
Limits of Liability. BOATS GROUP’S LIABILITY HEREUNDER, IF ANY, WILL NOT EXCEED, IN THE AGGREGATE, AN AMOUNT EQUAL TO THE MONTHLY SERVICE FEE PAID BY THE CUSTOMER FOR THE PARTICULAR SERVICE THAT IS SUBJECT TO THE CLAIM IN THE MONTH IN WHICH THE DEFECT OR BREACH OCCURRED. IN NO EVENT WILL BOATS GROUP, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS OR THIRD PARTIES IDENTIFIED IN ANY DULY ORDERS OR EXECUTED ADDENDA HERETO BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS AND FEES OR WHETHER BASED UPON LOST GOODWILL, LOST PROFITS, LOSS OR DISCLOSURE OF DATA (HOWEVER CAUSED) OR INTERRUPTION IN USE OR AVAILABILITY OF SERVICES OR DATA) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF THE PERFORMANCE OF THIS AGREEMENT. CUSTOMER AGREES THAT THE CONSIDERATION WHICH BOATS GROUP IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY BOATS GROUP OF THE RISK OF CUSTOMER’S INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES. THESE LIMITATIONS WILL APPLY WHETHER OR NOT BOATS GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES ACKNOWLEDGE THAT THE FEES WERE DETERMINED BASED UPON THE FOREGOING LIMITATION OF LIABILITY. EACH PARTY UNDERSTANDS AND AGREES THAT THE LIMITATIONS OF LIABILITY IN THIS AGREEMENT FORM A FUNDAMENTAL PART OF THIS AGREEMENT AND THAT CUSTOMER AND BOATS GROUP WOULD NOT AGREE TO ENTER THIS AGREEMENT WITHOUT SUCH LIMITATIONS.
Special TCPA Provisions. In addition to and not in limitation of the other representations, warranties, covenants and agreements of Customer contained in this Agreement, Customer represents, warrants and covenants that it is complying, and shall comply, with all requirements of the Telephone Consumer Protection Act of 1991, as amended from time to time and including the accompanying federal regulations related thereto (“TCPA”), the California Consumer Privacy Act of 2018 (“CCPA”), the Controlling the Assault of Non-Solicited Pornography and Marketing Act (the “CAN-SPAM Act”), the Telemarketing Sales Rule (“TSR”), the Junk Fax Prevention Act, Canada’s Anti-Spam Legislation and its associated regulations (“CASL”), the Canadian Radio-television and Telecommunications Commission Unsolicited Telecommunications Rules (“CRTC Telemarketing Rules”), the Personal Information Protection and Electronic Documents Act (“PIPEDA”) (Canada) and its provincial counterparts as well as any other applicable federal or state laws and regulations governing consumer contacts and notifications. Without limiting the generality of the foregoing:
1. Customer shall be solely responsible for its communications with customers, potential customers and other consumers, including the content of the communications, the selection of recipients of the communications, and the manner, time and means of delivery of such communications; and
2. to the extent any such communications involve the use of predictive or automated dialers and/or prerecorded messages, Customer acknowledges and agrees that:
  1. each individual to whom such communications are delivered must provide his or her prior express written consent, via written or electronic signature, to receive communications via predictive or automated dialers and prerecorded message
  2. Customer must provide a mechanism that enables all such individuals to opt-in to (and freely opt-out of) such communications, and
  3. Customer must post and maintain on its website or other appropriate area, in close proximity to the opt-in/opt-out mechanism, a conspicuous disclosure indicating that by providing such consent:
    1. the individual is authorizing the entity and/or its named Affiliates to make telemarketing calls that may use an automatic dialing system and/or an artificial/prerecorded voice, and
    2. the individual is not required to sign the consent as a condition of purchasing any property, goods or services. Customer shall indemnify, defend and hold harmless Boats Group and its Affiliates, and its and their respective officers, directors, employees, agents and representatives (collectively, “Boats Group Indemnified Parties”), from and against any and all claims, proceedings and demands asserted or alleged by third parties, including, but not limited to any governmental authority, agency or commission, against any Boats Group Indemnified Party (collectively, “Claims”), and from and against any damages, costs, fines, penalties, expenses and other liabilities of any kind whatsoever (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with any such Claims, arising out of or in any way related to:
      1. any breach by Customer of any of the foregoing representations, warranties and covenants or other terms and conditions set forth in this Agreement or
      2. Customer’s violation of or failure to comply with the terms and provisions of the TCPA, CCPA, the CAN-SPAM Act, TSR, CASL, CRTC Telemarketing Rules, PIPEDA and/or any other applicable law, rule or regulation.
Confidentiality.
1. Each of Boats Group and Customer shall hold all non-public business, technical, trade secrets or other information (including any technical manuals or documentation of Boats Group relating to the Services) relating to the other (“Confidential Information”) in confidence and shall not otherwise disclose it to third parties or use it for any purposes other than in furtherance of this Agreement. For the purposes of this Agreement, the party hereto receiving Confidential Information from the other party shall be the “Receiving Party” and the party disclosing such Confidential Information shall be the “Disclosing Party”. Each of Boats Group and Customer shall protect Confidential Information of the other from unauthorized disclosure or use in the same manner that it protects its own Confidential Information of a like nature, using no less than a reasonable standard of care. For these purposes, Confidential Information shall not include information that:
  1. is received free of restriction from another source having the right to so furnish such information;
  2. is or becomes generally available to the public without breach of this Agreement by the Receiving Party;
  3. was in the Receiving Party’s possession before receipt from the Disclosing Party; or
  4. is independently developed by the Receiving Party. Customer acknowledges that the terms of this Agreement and any Order Forms are included in “Confidential Information” and agrees to keep this Agreement and any Order Forms confidential.
2. Disclosure of Confidential Information shall not be precluded by the Receiving Party if such disclosure is:
  1. required pursuant to a valid court order or
  2. in the opinion of legal counsel for the Receiving Party, is otherwise required by law, provided that in either circumstance:
    1. the Receiving Party shall furnish to the Disclosing Party with a copy of the demand, summons, subpoena or other legal process to compel such disclosure,
    2. the Receiving Party shall give the Disclosing Party reasonable prior notice of its intention to disclose the Confidential Information in order to allow the Disclosing Party an opportunity to seek appropriate protection, and
    3. the Receiving Party shall take all reasonable steps, including, without limitation, the pursuit of a protective order, to restrict the disclosure of the Confidential Information to the greatest extent possible.
3. The Receiving Party shall promptly return to the Disclosing Party or destroy (with certification of such destruction provided by the Receiving Party upon request) all Confidential Information of the Disclosing Party in its possession or control upon request from the Disclosing Party or upon termination of this Agreement. Notwithstanding the foregoing, the Receiving Party is not required to remove copies of the Disclosing Party’s Confidential Information from its back-up media and servers where doing so would be commercially impracticable.
4. The parties acknowledge that the unauthorized use or disclosure of Confidential Information may cause irreparable harm to the Disclosing Party. Accordingly, the parties agree that the Disclosing Party shall be entitled to seek equitable relief, including injunctive relief, in addition to all other remedies available at law for any threatened or actual breach of this Agreement with respect to Confidential Information.
The parties acknowledge that the unauthorized use or disclosure of Confidential Information may cause irreparable harm to the Disclosing Party. Accordingly, the parties agree that the Disclosing Party shall be entitled to seek equitable relief, including injunctive relief, in addition to all other remedies available at law for any threatened or actual breach of this Agreement with respect to Confidential Information.
Miscellaneous. This Agreement does not create a joint venture, partnership, employee, agency, franchise or representative relationship between or among Customer, Boats Group and any third parties. Customer may not assign this Agreement without the prior written consent of Boats Group and any attempted assignment without receiving such consent shall be null and void and of no force and effect. The Terms of Use, Privacy Policy, any Order Forms and this Agreement constitute the entire agreement between Customer and Boats Group and supersede any and all prior and contemporaneous agreements between Boats Group and Customer. This Agreement supersedes all prior proposals, representations, agreements, and understandings, written or oral, concerning its subject matter and the terms in any Customer purchase order or other Customer ordering document. No other act, document, usage, or custom shall be deemed to vary or amend this Agreement. If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in force. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights. Customer agrees that Boats Group may change the terms of this Agreement by posting those changes in BoatWizard and Customer agrees to check that web page often. Customer’s continued use of the Services after the posting of an amended Service Agreement will constitute Customer’s agreement to the amended Service Agreement.
Additional Legal Matters. (Customers Located in North America and South America): If Customer’s principal place of business is located in North America or South America, the following shall apply:
1. If Customer is located in North America or South America, the following shall apply:
  1. This Agreement and any Order Form will be governed by and construed in accordance with the law of the State of Florida U.S.A. without regard to its conflict of law’s provisions. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement in whole or in part. The federal and state courts within the State of Florida will have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement or any Order Form. The official text of this Agreement shall be in the English language as used in the United States, and any interpretation or construction of this Agreement shall be based on the English language text. If and insofar as there is a discrepancy between the English language of this Agreement and a translated version of thereof, the English language shall prevail. The parties have expressly required that this Agreement, any Order Form, and all documents and notices relating hereto be drafted in English. Les parties aux présentes ont expressément exigé que la présente convention, tout bon de commande, et tous les documents et avis qui y sont afférents soient rédigés en anglais. Customer hereby expressly consents to:
    1. the personal jurisdiction of the federal and state courts within Miami, Florida, and
    2. service of process being effected upon it by registered mail sent to the address set forth on the Order Form. Customer hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. The individual executing this Agreement warrants that he or she is authorized to execute and deliver this Agreement and any Order Form on behalf of Customer. By agreeing to this Agreement, Customer and Boats Group consent to the use of electronic signatures in lieu of an original signature on paper. Each party agrees that any electronic signatures, whether digital or encrypted, of the parties included in this Agreement or any Order Form are intended to authenticate this writing and to have the same force and effect as manual signatures. This Agreement and any Order Form may be executed in counterparts, each of which will constitute an original, and all of which will constitute one agreement. The counterparts of this Agreement or any Order Form may be executed and delivered by facsimile, mail, email, or other electronic means by a party to the other party and the receiving party may rely on the receipt of such document so executed and delivered by facsimile, mail, email or other electronic means as if the original had been received.
2. If Customer’s principal place of business is located outside North America or South America, the following shall apply:
  1. Services purchased through Yacht.World.com: This Agreement and any Order Form will be governed by and construed in accordance with the laws of England and Wales. Any disputes or controversies arising out of this Agreement or any Order Form shall be subject to the jurisdiction of the courts of England and Wales.
  2. Services purchased through Cosasdebarcos.com: this Agreement will be governed by and construed in accordance with the laws of Spain. Any disputes or controversies arising out of this Agreement shall be subject to the jurisdiction of the courts of Madrid (Spain).
  3. Common stipulations applicable to Services purchased through YachtWorld.com and CosasdeBarcos.com: The United Nations Convention for the International Sale of Goods shall not apply to this Agreement in whole or in part. The person executing this Agreement warrants that he or she is authorized to execute and deliver this Agreement and any Order Form on behalf of Customer. The parties have expressly required that this Agreement, any Order Form, and all documents and notices relating hereto be drafted in English. Les parties aux présentes ont expressément exigé que la présente convention, tout bon de commande, et tous les documents et avis qui y sont afférents soient rédigés en anglais. The official text of this Agreement and any Order Form shall be in the English language as used in the United States, and any interpretation or construction of this Agreement and any Order Form shall be based on the English language text. If and insofar as there is a discrepancy between the English language of this Agreement and any Order Form and a translated version of thereof, the English language shall prevail. By agreeing to this Agreement, Customer and Boats Group consent to the use of electronic signatures in lieu of an original signature on paper. Each party agrees that any electronic signatures, whether digital or encrypted, of the parties included in this Agreement and any Order Form are intended to authenticate this writing and to have the same force and effect as manual signatures. This Agreement and any Order Form may be executed in counterparts, each of which will constitute an original, and all of which will constitute one agreement. The counterparts of this Agreement or any Order Form may be executed and delivered by facsimile, email or other electronic means by a party to the other party and the receiving party may rely on the receipt of such document so executed and delivered by facsimile, email or other electronic means as if the original had been received.
3. Electronic Signatures and Consent to Receive Electronic Disclosures. Boats Group offers the ability to fill out and sign various forms using the Services. These disclosures will help the Customer decide whether continued use of our electronic process service is desired or not. By agreeing to the Terms of Use or clicking the ‘CONFIRM AND SIGN’ button, Customer agrees to use electronic communications, electronic records and electronic signatures rather than using paper documents for the forms provided in connection with the Services. If Customer prefers to use paper forms, Customer can click on the print icon located on the screen of any form or Customer can contact Yacht Closer LLC at 800-669-2572 or via email at Legal@YachtCloser.com.
  1. In order to electronically sign using this web site, a computer requires a typical web-browser that accepts cookies. Most current browsers work fine.
  2. Customer may print a copy of any form using its own printer. A legal copy of the signed form will be sent to Customer if requested. No fee will be charged to mail the requested form to Customer by first-class US Mail.
  3. This disclosure covers all electronic communications arising out of the relationship between Boats Group and Customer, and is not limited to cover this transaction alone.
  4. By using the Services, Customer agrees to use an electronic signature in lieu of a paper-based signature. Customer understands that electronic signatures, just like signing a piece of paper, are legally binding in the United States and in other countries. Customer further agrees not to electronically sign any form without first reading it and ensuring that Customer has accurately filled out the form to the best of Customer’s knowledge, thus demonstrating that Customer is able to access the electronic information used by the Boats Group system.
  5. Customer is not required to sign electronically if Customer prefers not to do so.
  6. To withdraw Customer’s consent (now or in the future) to use electronic transactions, please contact Boats Group at 800-669-2572 or via email at Legal@YachtCloser.com. If Customer withdraws its consent, it will not affect the legal standing of any signed forms Customer may have already submitted previously. There are no fees if Customer elects to withdraw Customer’s consent. Please also contact Boats Group using the above information if Customer should change the email address provided to Boats Group.
4. Unless otherwise agreed to by the parties, any notice required or permitted to be given or delivered under this Agreement shall be delivered to the address set forth in the Order Form. Notice shall be deemed to have been received by any party, and shall be effective:
  1. on the day given, if personally delivered or if sent by confirmed facsimile transmission, receipt verified or
  2. on the fifth day after which such notice is mailed by certified, first class, postage prepaid, return receipt requested mail.
5. Customer Responsibilities. Customer shall cooperate with Boats Group in its performance of the Services by, without limitation:
  1. promptly rendering all decisions and approvals so as not to delay or impede the performance of Services by Boats Group;
  2. promptly notifying Boats Group of any issues, concerns or disputes with respect to the Services; and
  3. providing Boats Group with timely access to data, information and personnel of Customer. Customer is prohibited, now and in the future, from any conduct that would imply in any way to any third party that any Customer listings originate from other than Boats Group.
Website Services Specific Provisions. If Customer has purchased or is utilizing Services involving or relating to the development or implementation of a Boats Group website for Customer, and in the event of a conflict between the additional terms and conditions in this Section 25 and any other terms and conditions in this Agreement, then for purposes of such applicable Services only, the terms and conditions in this Section 25 will prevail.
1. Additional Definitions. For the purposes of this Section 25:
  1. “Website Solution” means the website solution developed by Boats Group for the Customer as identified in this Agreement and any Order Form;
  2. “Website Specific Services” means the marketing tools and services to be provided to the Customer by Boats Group, and, where applicable, shall include the Website Solution;
  3. “Marketing Materials” means the digital information, graphics, images and text provided by the Customer or created by Boats Group in the context of providing the Services or displayed on the Website Solution;
  4. the term “Services” shall also be deemed to include the Website Specific Services; and
  5. the term “Site Content” shall include any Marketing Materials (other than Materials).
2. Customer’s Use of Services and Site Content.
  1. Essential Elite Website: Following execution of the Agreement and any Order Form by the parties, Customer is expected to respond to Boats Group’s requests related to Website Solution implementation and launch activities within reasonable timeframes. If Customer does not respond to requests for any information or activities associated with implementation, and launch of the Website Solution, for a period greater than five (5) business days or more, Boats Group reserves the right to place the development work on hold and the project will be subject to reprioritization and resource reallocation.
  2. Launchpad Website: Following execution of the Agreement and any Order Form by the parties, Customer is expected to provide all page content, including a logo, text and any desired images. Additionally, a domain name needs to be registered by the Customer, and the domain’s name servers pointed to values advised by Boats Group. Implementation of the Launchpad Website will not begin until all of the above is provided. A completed website will be delivered to the customer within ten (10) business days of receipt of the above.
  3. Essential Elite Website: Each website implementation will allow for two styling modifications from the original chosen layout. Any additional changes will be chargeable at Boats Group’s current hourly design rate and may also impact scheduled launch date.
  4. In connection with the Services provided, Boats Group may, at its discretion and at any time without prior notice to Customer, modify the Services or the Website Solution as long as the basic functionality remains substantially the same. Boats Group will use reasonable care in updating and modifying the Services or Website Solution; provided, however, Customer is solely responsible for verifying the accuracy of the information conveyed by the Services or Website Solution by Boats Group and Boats Group expressly disclaims any and all responsibility and liability for errors of any kind with respect to any and all information included in or on the Materials. In addition to and not in limitation of the foregoing, Customer is solely responsible for updating, as often as required, information included on the Website Solution in any areas that Boats Group provides Customer with the ability to update.
  5. In the event of a termination of this Agreement, Customer shall have the right at its expense to obtain copies of all of Customer’s customer data.
  6. Customer represents and warrants that it has and shall maintain the right and authority to display in the Marketing Materials all applicable OEM and/or distributor vehicles, products, logos and trademarks and any and all other Materials. Customer authorizes Boats Group to use its logo, images and information in the Marketing Materials and on Boats Group’s Website Solution as Boats Group deems appropriate to promote Customer and Boats Group services. Boats Group owns and shall retain hereunder all right, title and interest in and to the names “Boats Group Marketing Solutions®” and Boats Group, together with any trademarks and/or service marks that are hereafter adopted in connection with the Services (“Boats Group Brand Features”).
3. Web Address/URL Ownership. Unless Customer’s web address/URL is an address owned by Customer, Customer hereby agrees that it has no property or other rights to the web address/URL used in the Services and that, upon any termination or expiration of the Services or this Agreement and any Order Form relating to such web address/URL, Boats Group reserves the right to reassign such web address/URL that was previously assigned to Customer by Boats Group.
4. Compliance. Customer will be solely responsible for:
  1. ensuring that the privacy policy and all other terms and conditions relating to the use by end users of each website resulting from the Website Services comply with this Agreement and all applicable law, rules, regulations, orders and decisions in all jurisdictions in which such website or users of such site may be located, or in which any data relating to such website or such users will be stored or processed; and
  2. complying with all such laws, rules, regulations, orders and decisions in Customer’s operation of such website, including by providing all notices to website users required thereby.
5. Website Billing Essential Elite Website: Following execution of the agreement, billing shall begin after thirty (30) days. In order for the site to be created within this timeframe, Customer is expected to respond to Boats Group’s requests related to Website Solution implementation and launch activities within the initial two (2) weeks.
YachtWorld Services Specific Provisions. If Customer has purchased or is utilizing Services involving or relating to its membership, and in the event of a conflict between the additional terms and conditions in this Section 26 and any other terms and conditions in this Agreement, then for purposes of such applicable Services only, the terms and conditions in this Section 26 will prevail.
1. Additional Definitions. For the purposes of this Section 26:
  1. “central/exclusive listing” shall refer to a written listing agreement signed by the owner of the vessel authorizing only one brokerage to offer a boat for sale whereby such owner relinquishes the right to sell the boat himself or herself and agrees to pay the listing brokerage a specified commission if any sale is entered into during the term of the listing agreement. Proper broker-to-broker ethics do not allow any contact with the owner without the listing broker’s authorization;
  2. “open/non-exclusive listing” shall refer to a written listing agreement signed by the owner of the vessel given to one or more brokerages whereby the broker that produces a buyer is paid a commission and the owner remains free to sell the boat to his or her own prospects without paying a commission;
  3. “trade-in” shall refer to a boat owned by a dealer or brokerage being offered for sale;
  4. “available for co-brokerage” shall refer to a mutual agreement to split the commission between two brokerage firms for a sale completed by two firms. Traditionally the Listing Agent (firm with the signed agreement with seller to offer boat) and the Selling Agent (firm representing buyer with a signed Purchase & Sales Agreement) cooperate to sell either a Central/Exclusive or an Open/Non- Exclusive listing;
  5. “Custom boats and yachts” shall refer to Vessels built by a manufacturer with an annual output less than 50 units, typically ordered with specific construction customization. Boats Group’s good faith interpretation of any term used in this Agreement or any Order Form shall be final and binding, including, without limitation, auction, fractional and central listings.
2. Policies. Customer must adhere to the following advertising policies:
  1. Yacht World Listing Policies.
    1. All central/exclusive and open/non-exclusive listings advertised in “YachtWorld” require a written listing agreement. If Customer is challenged on such Customer’s listing, a listing agreement, signed by the owner of the vessel, must be emailed to Boats Group upon request.
    2. Listings can be centrals/exclusives, opens/non-exclusives, trade-ins and new boats. Listings cannot be “for sale by owner” (FSBO) listings. Customer cannot re-sell Boats Group’s advertising service. Customer cannot utilize a YachtWorld membership for the purpose of soliciting advertising fees from owner/sellers. Referring the interested buyer directly or indirectly to the seller for more information is prohibited.
    3. Customer may not advertise another broker’s central or exclusive listing in its own inventory of boats for sale.
    4. Business information regarding Customer’s brokerage may not be displayed on the YachtWorld website listing, this includes branding images and listings with a company name or other identifying mark or method.
    5. Boats entered as ‘New’ must be in stock at Customer’s office, or under construction at the builders. Customer may enter boats that Customer has pre-ordered for construction. All ‘New’ product boats must have a HIN number entered into the HIN field in BoatWizard. Customer may also enter “New” Custom boats and yachts that are available for construction without a HIN number.
    6. If Customer loses a listing, the listing must be deleted on the YachtWorld website within twenty-four (24) hours after said event.
    7. Customer may not advertise multiple copies of their listings.
    8. If Customer does not have a boat sale pending, it may not be displayed with the “Sale Pending” status. “Sale Pending” means written accepted offer with a deposit.
    9. Customer-specific contact information or information designed to thwart co-brokerage activity is not allowed in the general description field of the display ad or anywhere on the Full Specs page; it is only allowed in the “Custom Contact Information” field.
  2. Eligibility Policies. Customer understands that with its membership application, Customer must provide a minimum of three central/exclusive boats for sale, available for co-brokerage, with signed listing agreements from three different owners, none of which are owned by the member or employee, and none of which are already advertised on the YachtWorld site. To maintain eligibility for YachtWorld.com, three boats or 75% of Customer’s inventory, less new and trade-in inventory, must be available for co-brokerage, whichever is greater.
  3. Tiered Membership Rate Policies. Customer understands that the tiered pricing model for YachtWorld membership is determined by Customer’s active number of listings in the given month. Customers will be invoiced according to this policy and may differ from the signed rate agreement should a Customer’s actual inventory count differ from the contracted tier during that month.
  4. Sold Boat Policies.
    1. Customer must contribute accurate information including pricing information to soldboats.com in order to access the information in soldboats.com provided by other parties.
    2. Only the listing agency involved in the sale of a boat can enter a boat in the soldboats.com database.
    3. Com data for which Customer is not the listing agent may not be published in a promotional manner through channels including, but not limited to websites, printed brochures, emails and direct mail.
    4. Soldboats.com data cannot be shared with non-soldboats.com members unless it is information that has already been published and made publicly available by YachtWorld. Any reference to published information (for example, the YachtWorld market Index) must include attribution to YachtWorld.
    5. Members must contribute a minimum of 75% of their used/brokerage inventory to soldboats.com in order to maintain access to the database.
YachtCloser Services Specific Provisions. If Customer has purchased or is utilizing Services involving or relating to YachtCloser, and in the event of a conflict between the additional terms and conditions in this Section 27 and any other terms and conditions in this Agreement, then for purposes of such applicable Services only, the terms and conditions in this Section 27 will prevail.
1. Description of Services. YachtCloser provides a venue and mechanism for the Customer to:
  1. sign listing agreements for the sale of vessels,
  2. manage listings,
  3. prepare and sign purchase and sale agreements for vessels, and
  4. manage the purchase and sale process for such vessels. As such, Boats Group is not involved in the actual transactions between buyers, sellers and/or brokers, have not control over the buyers, sellers and/or brokers, and does not guarantee in any manner that buyers will pay, brokers will perform, or that any transaction(s) will be completed.
2. Various services are available on the YachtCloser site including, but not limited to, simplified input of contract data, contract management, automated contract distribution, electronic signatures, yacht brokerage listings, and other like services. Customer is responsible for providing, at Customer’s own expense, all equipment necessary to use the services, including a computer and Internet access (including payment of all fees associated with such access).
3. Legal Forms/Documents and No Legal Advice Disclaimer. Customer understands that access to and use of any and all legal forms/documents (collectively “Forms”) on the YachtCloser site constitutes neither legal advice nor the practice of law. Customer further understands that Yacht Closer LLC is not an attorney or law firm, and that neither Yacht Closer LLC nor its Affiliates are representing Customer in any capacity – legal or otherwise. If legal advice is required, please consult a licensed attorney. Customer use of Yacht Closer LLC services cannot replace the advice of an attorney or create an attorney-client relationship between Customer and Yacht Closer LLC or its Affiliates. For purposes of this Agreement, “Affiliate” means in relation to either party, each and any subsidiary or holding company of that party and each and any subsidiary of a holding company of that party. Although Yacht Closer LLC makes reasonable efforts to ensure the accuracy of the legal forms/documents it provides, the law is constantly changing, and Yacht Closer LLC cannot guarantee the correctness, appropriateness or completeness of the legal information.
4. Customer is responsible for reading and understanding, and will be bound by, the terms and conditions of any Forms which Customer may prepare, sign or submit using the YachtCloser site. Customer understands and agrees that any Forms that Customer may prepare, sign or submit may be binding legal obligations depending on the content of any such Form. Customer understands that Customer may be legally bound should Customer submit or sign a form – even if Customer has done so by mistake. PLEASE USE EXTRA CAUTION AND CARE TO ENSURE THE ACCURACY AND VALIDITY OF ALL COMMUNICATIONS BEFORE CUSTOMER SIGNS OR SUBMITS ANY FORMS.
5. Relationship to Documents and Transactions. Unless Yacht Closer LLC is named as a party, Yacht Closer LLC’s relationship to all documents and transactions completed using the service is that of a disinterested third party. Accordingly, Yacht Closer LLC disclaims any representations or warranties of any kind, including warranties of merchantability and fitness for a particular purpose, regarding the documents generated by the YachtCloser site or transactions that pass through the service. Customer is responsible for recognizing the parties of interest in all transactions Customer completes using the service and assessing all associated risks.
6. Boats Group is not a party in any actual transaction entered into using the YachtCloser site, and is not an agent of any party to any such transaction (unless expressly stated in any such Form), Boats Group does not have the duty to resolve and will not be involved in resolving any disputes between participants related to or arising out of any such transaction. Boats Group has no control over, and does not guarantee, the quality, safety or legality of any items that may be purchased using the YachtCloser site, the quality of services offered by any broker, the truth or accuracy of listings, the ability of sellers to sell items, the ability of buyers to pay for items, or that a buyer, seller or broker will actually complete a transaction. No statement by any seller or broker regarding condition, kind, value or quality of an item shall be construed to be an expressed or implied warranty, representation or assumption of liability by Boats Group. It is policy to allow sellers, buyers and brokers the opportunity to settle differences directly.
7. Privacy Policy. No users from one yacht brokerage company are allowed access to the confidential transaction information of any other yacht brokerage company, including the clients or contracts that are pending or fully executed. If Customer uses the YachtCloser site, Customer agrees that data and personally identifiable information collected and generated from such use will be subject to the then-current version of the privacy policy located at: https://www.yachtcloser.com/privacy-policy, which may be updated at any time.
Co-Brokerage Search Services Specific Provisions. If Customer has purchased Services involving the use of a web-based search application permitting brokers to display boat listings represented by other cooperating brokers, then the following additional terms and conditions apply.
1. 1. Additional Definitions. For the purposes of this Section:
    1. “API” means an Application Programming Interface that allows Customer to receive Data from Boats Group;
    2. “Boats Group Environment” means Boats Group’s or any third-party equipment, software, systems, networks or other infrastructure items used by or on behalf of Boats Group to provide the Boats Group websites and platform including, without limitation, storage and networking hardware, operating systems, database management systems and all application software operated by or on behalf of Boats Group to provide the Boats Group websites and platform, but specifically excludes, without limitation, communication and/or connectivity systems provided by wireless carriers, telecommunications providers and Internet providers;
    3. “Co-Brokerage Search” means the co-brokerage search application, data and functionality comprised of Central and Available for co-brokerage boat listings provided by Boats Group customers;
    4. “Confidential Information” has the meaning given to it in Section 21.1 above;
    5. “Data” means the data or information, in whatever form including text, images or video, the provision of which comprises the Co-Brokerage Search;
    6. “Excused Downtime” means that, for purposes of determining the availability of a Service, downtime will not include, and Boats Group assumes no responsibility for, downtime or any service degradation resulting, in whole or in part, from any of the following:
      1. the acts or omissions of Customer, its Affiliates or their respective agents, dealers, contractors or vendors or any unauthorized act by a user;
      2. problems with any connectivity or third party network outside the control of Boats Group, including, without limitation, problems or unavailability of the Internet, telecommunications services or third party networks or connectivity;
      3. any planned outage; or
      4. any factors outside of Boats Group’s control and/or a force majeure event;
    7. “Sites” shall mean Customer’s URLs set forth on the Order Form; and
    8. “Services” shall, for the avoidance of doubt, include the supplying of Data by means of the Co-Brokerage Search.
1. Policies.
  1. Members must contribute at least 10 “central” and “available for co-brokerage” listings to the BoatWizard MLS in order to activate/use a PLS page on their site.
  2. A PLS is available only for YW member brokerage websites, located on and off YachtWorld. It is not available for loan, trade, lease, rent or sale to any other individual, business, website or entity.
  3. You may not have a PLS search page if you have excluded all your listings from other’s PLS pages.
  4. If the inventory is not displayed together, the navigation elements must clearly separate the PLS inventory from in-house inventory in the page structure of the website (i.e, website menus, tabs, dropdown menus and search forms).
  5. PLS listing data must be pulled from YachtWorld servers at the time it is requested. Data may not be scraped, copied, or stored in any manner or format.
  6. The PLS listing data must be displayed in its entirety, including the provided disclaimers, and may not be altered from the original listing. Any additions, deletions, or other modifications to the original listing data is prohibited.
  7. PLS listing data must comply with the following order:
    1. Photos are to be displayed at the top of the listing. No additional text, images or other content may be placed above the PLS listing photos.
    2. PLS listing descriptions are to be displayed beneath the photos and must be visibly displayed in its entirety.
    3. The attribution disclaimer must be displayed at the end of the description and visibly displayed in its entirety as a stand-alone text.
  8. PLS listings may be included in marketing campaigns in whole or in part, so long as it is explicitly stated that the listings in questions are part of a Worldwide Search or that they are MLS listings. The marketing may not imply that the PLS inventory is part of the firms’ inventory.
  9. PLS listing data may be used on multiple pages on your website, so long as the original listing data is not altered or modified as outlined above.
  10. Any intent to misrepresent a PLS listing as your own in-house listing is prohibited.
  11. Frequent offenders of the policies above will be escalated, up to and including the loss of the PLS product.
2. License.
  1. In consideration of the fees paid by Customer, Boats Group hereby grants to Customer a non-exclusive, revocable, non-transferable license (with no rights to sub-license), for the term of the Agreement and Order Form, to use the Data and API that form part of its Services only on the Sites. Customer accepts responsibility for the selection of the Co-Brokerage Search to achieve its intended results and acknowledges that the Co-Brokerage Search has not been developed to meet the individual requirements of Customer.
  2. Customer may only use the Data and API for Customer’s normal business purposes (i.e., the advertisement of boats for sale) which shall not include allowing the use of the Data or API by, or for the benefit of, any person other than an employee, consultant or contractor of Customer.
  3. Except as expressly permitted by the terms of this Agreement, Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Co-Brokerage Search, in whole or in part, except to the extent that any reduction of the Co-Brokerage Search to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Co-Brokerage Search with the operation of other software or systems used by Customer for the purposes permitted by this Agreement, unless Boats Group is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and Customer shall request Boats Group to carry out such action or to provide such information (and shall meet Boats Group’s reasonable costs in providing that information) before undertaking any such reduction. Furthermore, Customer shall not access the Co-Brokerage Search for purposes of monitoring the Co-Brokerage Search’s availability, performance or functionality, or for any other benchmarking or competitive purposes or use the Co-Brokerage Search or Customer’s access to the Co-Brokerage Search to design, build, market or sell any similar, competitive or substitute service.
  4. Customer may not use any information provided by Boats Group or obtained by Customer during any action permitted under Section 28.3.2 to create any software whose expression is substantially similar to that of the Co-Brokerage Search nor use such information in any manner which would be restricted by any copyright subsisting in it.
  5. Customer shall:
    1. ensure that the Data and API is used on the Sites only,
    2. notify Boats Group as soon as it becomes aware of any unauthorized use of the Data and/or API by any person, and
    3. pay, for broadening the scope of the licenses granted under this Section to cover any unauthorized use, a reasonable amount specified by Boats Group together with interest at the rate of 1.5% per month, or at the highest legal interest rate, if less, from the date on which the unauthorized use commenced to the date of payment.
  6. Customer shall not modify or omit Data from the boat listing. Customer will use the most recent, up-to-date Data for use on the Sites under the terms of this Agreement. Unless otherwise permitted by Boats Group or as strictly required to use the Data as permitted, Customer shall not store a copy of the Data in any format or location.
  7. Customer shall permit Boats Group to inspect and have access to any records kept or systems used in connection with this Agreement, to ensure that Customer is complying with the terms of this Agreement, provided that Boats Group provides reasonable advance written notice to Customer of such inspections. The inspections shall be limited to no more than one (1) per year unless a breach of this Agreement is identified in which case the inspections shall be limited to two (2) per year.
3. Modifications and Updates.
  1. Boats Group will apply all error corrections, modifications, updates and upgrades to the Data and API and any other aspect of its Services as it reasonably deems necessary and/or appropriate from time to time and shall inform Customer by way of email or in writing of any such modifications, updates and upgrades.
  2. Any requests for changes to the Co-Brokerage Search software will be billed at Boat Group’s then-current hourly development rate. A reasonable timeline will be established for this work. Pre-payment for this work will be determined on a case-by-case basis.
4. Export. Customer, or any agent or third-party hired by Customer, shall not export, directly or indirectly, any Data acquired from Boats Group from another Boats Group customer under this Agreement (or any products, including software, incorporating any such data).
5. Boats Group Warranties.
  1. Subject to routine maintenance, Boats Group shall use its commercially reasonable efforts to make the Services available at all times. Notwithstanding the foregoing, Boats Group does not warrant that the use of its Services will be completely uninterrupted or that the Data shall be completely error-free.
  2. Boats Group shall ensure that the content, format and nature of the Data, API or the Services or the means to access them shall not change in a material way so as to cause Customer downtime without advance written notice and a reasonable period for Customer to conform its systems. In the event of changes to the Data, API or Services it is Customer’s responsibility to undertake change to Customer’s system needed to conform to those changes.
  3. Customer accepts responsibility for the selection of the Co-Brokerage Search to achieve its intended results and acknowledges that the Co-Brokerage Search has not been developed to meet the individual requirements of Customer.
6. No Liens. Customer shall not without the prior written consent of Boats Group, allow the Data to become the subject of any charge, lien or encumbrance.
7. Additional Effects of Termination or Expiration. Upon termination or expiration of this Agreement, all licenses granted herein shall terminate and Customer shall immediately cease using the Co-Brokerage Search, destroy all copies of any Confidential Information, software, and/or documentation in Customer’s possession or control, and provide certification of such destruction promptly upon Boats Group’s request. Termination shall not relieve Customer of its obligation to pay any fees previously incurred.
Boat Trader Services Specific Provisions. If Customer has purchased or is utilizing Services involving or relating to Boat Trader Membership, then for purposes of such applicable Services only, the terms and conditions in this Section will prevail. Previously-owned boats must exist and currently be for sale in North America to be advertised on BoatTrader.com.
Data Protection.
1. BY ENTERING INTO THIS AGREEMENT, YOU, ON BEHALF OF CUSTOMER, ENTER INTO THE TERMS AND CONDITIONS OF THIS SECTION 30, AND YOU ACKNOWLEDGE AND AGREE, ON BEHALF OF CUSTOMER, THAT SIGNING WILL CONSTITUTE CUSTOMER’S LEGALLY BINDING ELECTRONIC SIGNATURE TO THIS SECTION 30. IN ADDITION, YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE, ACKNOWLEDGE THAT YOU HAVE READ THIS SECTION 30 AND THAT YOU ARE AUTHORIZED ON BEHALF OF CUSTOMER TO EXECUTE THIS SECTION 30 ON CUSTOMER’S BEHALF. For the purposes of this SECTION 30, data protection law means the General Data Protection Regulation (EU) 2016/679) and all other applicable laws relating to the processing of personal data and privacy that may exist in any relevant jurisdiction, including, where applicable, the guidance and codes of practice issued by supervisory authorities (“Data Protection Legislation”) and other specific covenants included below. Consequently, the parties have agreed as follows:
2. Data Protection Obligations of the Parties. The parties agree that, with regards to the processing of personal data arising from the relationship between the parties, Boats Group and Customer are both data controllers according to the Data Protection Legislation.
  1. Customer commits to comply with any applicable requirement set forth by the Data Protection Legislation in relation to the collection and processing of personal data, to the extent such personal data is processed by Customer as data controller, including, but not limited to:
    1. notify users (and, where required by law, gather any necessary consents) about the conditions in which their personal data will be collected and processed;
    2. comply with the lawfulness, fairness and transparency principles, which means that personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject;
    3. report personal data breaches to the relevant data protection supervisory authority and where required by law, the affected data subjects;
    4. enter into written agreements with third parties that process personal data on behalf of Customer which shall include the content required by the Data Protection Legislation; and
    5. implement and maintain appropriate technical and organizational measures to protect the personal data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure.
  2. Boats Group commits to comply with any applicable requirement set forth by the Data Protection Legislation in relation to the collection and processing of personal data, to the extent such personal data is processed by Boats Group as data controller, including, but not limited to:
    1. comply with the lawfulness, fairness and transparency principles, which means that personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject and
    2. implement and maintain appropriate technical and organizational measures to protect the personal data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure.
  3. Liability and Indemnity. Customer shall be liable for any damages suffered by Boats Group as a consequence of any breach of obligations under this Section 30 or the Data Protection Legislation. Customer shall indemnify Boats Group, its Affiliates and their respective officers, directors, employees and agents and keep them fully and effectively indemnified against any and all losses, costs, claims, demands, damages, fines, penalties, expenses and liabilities of any nature arising out of or in connection with any direct or indirect breach by Customer of the Data Protection Legislation obligations.