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PERSONAL MINI-SITE™ AGREEMENT
By clicking the "I ACCEPT" button at the foot of this page, and then by completing all of the required fields on our information form and submitting the ensuing credit card payment authorization, you (the "Customer") thereby automatically enter into this Agreement with BoatStock.com™, a New Jersey limited liability company having a postal address at 1358 Hooper Avenue #321, Toms River, New Jersey 08753 ("BoatStock.com™"), and agree to all of its terms and conditions. 1. Scope of this Agreement. This Agreement sets out the terms and conditions pursuant to which BoatStock.com™ will build and maintain the Customer's Personal Mini-Site™and make it available on the Internet's World Wide Web ("WWW"). 2. Definitions. 2.1. "Personal Mini-Site™" means the Customer's personal and unique WWW location built and posted by BoatStock.com™, and accessible to Internet users by means of its own personal and unique URL. 2.2. "Content" means the textual, graphic, video and audio materials provided by the Customer to BoatStock.com™ in accordance with this Agreement for publication by BoatStock.com™ at the Customer's Personal Mini-Site™. "Content" does not include any materials or data provided by BoatStock.com™ or any third party, nor does it include any materials accessed by means of an hyperlink located at the Customer's Personal Mini-Site. The Customer is solely responsible for "Content". 2.3. "BoatStock.com™ Materials" means all utilities, tools, programs, coding, and command sets provided or developed by BoatStock.com™ to facilitate or enhance the layout, presentation, format, or storage of the Content. 2.4. "Release Date" means the date on which the Customer's Personal Mini-Site™ first is made available to the public by BoatStock.com™ on the WWW. 3. Personal Mini-Site™ Pricing and Size Specifications. 3.1. Personal Mini-Site™ Pricing. BoatStock.com™ is pleased to be able to offer Personal Mini-Sites™ consisting of a minimuim of one page, depending on the number of photos a Customer wishes to post. The first page includes one or more reduced-size photos and accompanying non-graphical Content. For each reduced-size photo a Customer wishes to post on the first page of the Personal Mini-Site™, the Customer also gets an additional secondary page which opens automatically when the reduced-size photo on the first page is clicked. Each secondary page contains the full-sized photo and additional accompanying non-graphical content. Depending on the Personal Mini-Site™ size selected, BoatStock.com™ offers the following pricing options. ("Pricing") For Your Boat for Sale: Personal Mini-Site™ with 1 to 7 photos...........NO PAYMENT UNTIL SOLD. No time limit to sell your boat with this listing. Once your boat is listed in our boat for sale database and upon the sale of your boat by any means, or method, or medium, you will be billed a listing fee of $9.95 for the use of our web site, and database. If the customer does not sell their boat and would like to have the boat listing removed from the web site database, the customer will still be responsible for the listing fee of $9.95 for the use of our web site, and database. BOAT LISTING INFORMATION WILL NOT BE REMOVED FROM OUR WEB SITE DATABASE WITHOUT PAYMENT, SORRY NO EXCEPTIONS. The maintenance term associated with the Term Pricing above shall be the term of this Agreement (the "Term"). 3.2 Taxes. All charges, fees and pricing are exclusive of any and all applicable sales, use, ad valorem, personal property and other governmental taxes, charges, assessments and levies, all of which solely are the responsibility of the Customer. 4. Revisions to Personal Mini-Site After Release Date, and Pricing. In the event the Customer wishes to revise or change the Content of its Personal Mini-Site™ at any time after the Release Date and during the Initial Term or any Renewal Term, then Customer must give BoatStock.com™ notice to this effect and deliver the revised Content to BoatStock.com™ according to paragraph 5.1 below. Once delivered to BoatStock.com™, all revised "Content" shall be considered "Content" for purposes of this Agreement. Each time that the Customer requests a revision, the Customer shall pay BoatStock.com™ at a rate of $25.00 per page for non-photo revisions and $25.00 for each photo revision ("Revision Pricing"). 5. Customer's Obligations, Representations, Warranties and Indemnity. 5.1 Delivery of Content to BoatStock.com™. Customer will deliver the Content to BoatStock.com™ in electronic form (ASCII or any other mutually agreeable format). All textual Content must be in the English language. Solely the Customer is responsible for obtaining all licenses, permits and authorizations prerequisite to BoatStock.com's™ inclusion of the Content in the Customer's Personal Mini-Site™ and publication thereof. If Content is delivered to BoatStock.com™ other than by electronic means and the Customer wishes it returned, then Customer must provide BoatStock.com™ with an appropriate postage prepaid self-addressed envelope in which BoatStock.com™ may return the Content to Customer. 5.2. Covenants, Representations and Warranties. The Customer hereby covenants, represents and warrants to BoatStock.com™ that: (i) It has all requisite power and authority to provide, use and publish the Content as contemplated hereby; (ii) that its provision, use and publication of the Content in accordance herewith will not violate any agreement between Customer and any third party, or any copyright, trade secret or other proprietary right of any third party, or create any liability to any third party; (iii) the Content will not contain any matter that it defamatory, or which may cause injury or result in damage to any third party; (iv) the Content will not contain any matter that is false, misleading or deceptive; (iv) it will comply with all laws, rules and regulations applicable to it regarding ethics, conduct, and advertising; (v) in connection with each and every boat listed for sale on its Personal Mini-Site™, it either hold title to the boat in its own name or it is the agent of the title owner and as such is duly authorized to negotiate the sale of and to sell the boat; (vi) it will entertain any and all reasonable offers to purchase any boat listed for sale on its Personal Mini-Site™, and will negotiate toward such sale in good faith and in accordance with all applicable laws, rules, and regulations; and (vii) it will not use any Internet user's personal, private or confidential information contrary to any applicable law, rule or regulation. 5.3 Indemnity. The Customer hereby agrees to defend and indemnify BoatStock.com™, its members, managers, employees, agents, representatives, and affiliates, and their respective successors and assigns, and hold each of them harmless, from and against all claims, causes of action, damages, costs, and expenses, including without limitation reasonable attorneys' fees, arising out of, as a result of, or in connection with: (i) any fact or alleged fact which, if true, would constitute a breach of any covenant, representation or warranty made by Customer herein; (ii) any third party claim asserted with respect to any Content; and (iii) any third party claim concerning a breach by the Customer or its principal (if Customer is acting as an agent) of any agreement to sell any boat listed for sale on its Personal Mini-Site™. 6. BoatStock.com's™ Obligations, Representations and Warranties. 6.1. Covenants. Upon Customer's acceptance of this Agreement, BoatStock.com's™ receipt of credit card approval for the Customer's card described in the Credit Card Authorization, and BoatStock.com's™ receipt of Content in acceptable form, BoatStock.com™ will activate the Customer's Personal Mini-Site™ utilizing the "Content". BoatStock.com™ will notify the Customer by email of the Release Date and of the personal and unique WWW location and URL assigned to the Customer's Personal Mini-Site™. The foregoing procedures apply equally to Revisions except that BoatStock.com will not assign a new URL to a revised Personal Mini-Site™. BoatStock.com™ will maintain and make available at its own Web site to users of the Internet who agree with BoatStock.com's™ Terms and Conditions of Use (a "User" or the "Users") a search engine that will enable Users to search through all released Personal Mini-Sites™, locate those boats meeting their search criteria, and then link Users to those released Personal Mini-Sites™ at which those boats are offered for sale. The search engine will permit Users to search by boat make, model, and year, and/or by geographic location and/or by price. 6.2. Representations and Warranties. BoatStock.com™ represents and warrants to the Customer that: (i) The BoatStock.com™ Materials and their use as contemplated hereby do not and will not violate any intellectual property right of any third party or create any liability to any third party; and (ii) it has all requisite power and authority to perform its obligations hereunder. 6.3 Indemnity. BoatStock.com™ hereby agrees to defend and indemnify the Customer, and its successors and assigns, and hold each of them harmless, from and against all claims, causes of action, damages, costs, and expenses, including without limitation reasonable attorneys' fees, arising out of, as a result of, or in connection with any fact which, if true, would constitute a breach of any covenant, representation or warranty made by BoatStock.com™ herein 7. Payment. Upon clicking the "I Accept" button at the foot of this page, you, the Customer, will be asked to complete the required fields in the ensuing information form and credit card payment authorization form (the "Credit Card Authorization"). By completing and submitting the Credit Card Authorization the Customer agrees to prepay BoatStock.com™, and that BoatStock.com™ thereupon may charge the Customer's credit card identified in the Credit Card Authorization, the sums corresponding: (i) To the Start Up Pricing and the Initial Term Pricing options selected by the Customer in paragraphs 3.1 and 3.2 above (such charge to be made immediately); (ii) to the applicable Renewal Term Pricing (such charge to be made as of the first day of each and every Renewal Term); and (iii) to all applicable Revision Pricing (such charge to be made at the time a Revision is requested by Customer). 8. Early Termination. 8.1. Voluntary Early Termination. The Customer may voluntarily terminate this Agreement at any time by giving BoatStock.com™ no less than 72 hours' prior notice specifying the effective date of termination and the reason for termination. 8.2 Involuntary Early Termination. BoatStock.com™ may give notice terminating this Agreement effective upon the giving of such notice if: (i) The Customer fails to make any payment due hereunder as and when due, or if BoatStock.com™ is unable to obtain prompt payment by charging Customer's card described in the Credit Card Authorization; (ii) the Customer defaults in performing any obligation to be performed by it hereunder; (iii) any representation or warranty made by the Customer herein is determined by BoatStock.com™ to have been materially false or misleading when made; or (iv) the Customer breaches or is in default under any other agreement between it and BoatStock.com™. 8.3 Effect of Termination. In the event this Agreement is terminated for any reason (including the natural expiration of its last effective term), the terms of paragraphs 5, 6, and 9 through 19 of this Agreement shall survive, and BoatStock.com™ shall ensure that as of the effective date of termination the Customer's Personal Mini-Site™ is no longer available or accessible to users of the Internet's WWW. If termination occurs because the boat in question was sold during the Initial Term or any Renewal Term, BoatStock.com™ may, and the Customer hereby expressly authorizes it to, use the fact of such sale and the relevant Content (including photos) in BoatStock.com™ marketing and/or advertising materials, provided that the Customer's personal information is redacted therefrom. Regardless of the reason for, or the effective date of, termination of this Agreement, in no event will BoatStock.com™ issue any refunds or credits whatsoever to the Customer against sums prepaid by Customer to BoatStock.com™ in accordance herewith (including, without limitation, for any prepaid portion of the Initial Term Pricing or any Renewal Term Pricing which was not utilized because the Agreement was terminated before the natural expiration of said term). 9. DISCLAIMER OF WARRANTY. ALTHOUGH BOATSTOCK.COM™ WILL MAKE EVERY REASONABLE EFFORT TO SUPPORT ALL POPULAR INTERNET BROWSERS, THE CUSTOMER NEVERTHELESS ACKNOWLEDGES THAT CERTAIN SOFTWARE USED BY INTERNET USERS MAY NOT BE CAPABLE OF SUPPORTING CERTAIN FEATURES OR FUNCTIONALITIES WHICH MAY BE INCLUDED IN THE CONTENT. BOATSTOCK.COM™ SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIM(S) RELATING TO ANY INTERNET USER'S INABILITY TO ACCESS THE CUSTOMER'S PERSONAL MINI-SITE™ PROPERLY OR COMPLETELY OR FOR ANY CLAIM(S) RELATING TO ERRORS OR OMISSIONS IN THE CUSTOMER'S PERSONAL MINI-SITE™. NEITHER BOATSTOCK.COM™ NOR ANY OF ITS AFFILIATES, AGENTS OR REPRESENTATIVES MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE CUSTOMER'S PERSONAL MINI-SITE™, THAT ACCESS TO THE CUSTOMER'S PERSONAL MINI-SITE™ WILL BE UNINTERRUPTED, OR THAT THE CUSTOMER'S PERSONAL MINI-SITE™ WILL BE ERROR FREE. 10. LIMITATION OF LIABILITY. BOATSTOCK.COM'S™, ITS AFFILIATES', AGENTS', AND REPRESENTATIVES' ENTIRE LIABILITY HEREUNDER, IF ANY, FOR ANY CLAIM(S) FOR DAMAGES MADE AGAINST THEM RELATING TO THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), IS LIMITED TO THE AMOUNT OF THE CHARGES AND FEES PAID BY THE CUSTOMER TO BOATSTOCK.COM™ RELATIVE TO THE PERIOD OF THE OCCURRENCE OF EVENTS FORMING THE BASIS OF THE CLAIM(S). IN NO EVENT WILL BOATSTOCK.COM™, ITS AFFILIATES, AGENTS, OR REPRESENTATIVES BE LIABLE FOR ANY LOST PROFITS OR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THIS AGREEMENT OR RELATING IN WHOLE OR IN PART TO THE CUSTOMER'S RIGHTS HEREUNDER OR THE USE OF OR INABILITY TO USE THE CONTENT OR THE CUSTOMER'S PERSONAL MINI-SITE™. THE FOREGOING APPLIES EVEN IF BOATSTOCK.COM™, ITS AFFILIATES, AGENTS, OR REPRESENTATIVES WERE NOTIFIED OR AWARE IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. 11. LIMITATION OF CLAIMS/ACTIONS. EXCEPT FOR CLAIMS RELATING TO CHARGES, NO CLAIM, REGARDLESS OF FORM, WHICH IN ANY WAY RELATES TO OR ARISES OUT OF THIS AGREEMENT, OR THE USE OF OR INABILITY TO USE THE CONTENT OR THE CUSTOMER'S PERSONAL MINI-SITE™, MAY BE ASSERTED, NOR MAY ANY ACTION BASED ON SUCH A CLAIM BE COMMENCED, BY EITHER PARTY MORE THAN ONE YEAR AFTER THE BASIS FOR THE CLAIM BECOMES KNOWN TO THE PARTY DESIRING TO ASSERT IT. 12. No Agency. The parties to this Agreement are independent contractors. Neither party is an agent, representative or partner of the other. Neither party shall have the right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability for, or otherwise to bind the other party. This Agreement is not intended, and shall not be construed so as, to create an association, joint venture or partnership between the parties, or to impose any such obligation or liability on either party. 13. Assignment. The Customer may not resell, assign, or transfer any of its rights or obligations hereunder without BoatStock.com's™ prior written consent. 14. Notices. All notices to be given hereunder must be given by email and written in the English language: If to BoatStock.com™ to info@boatstock.com, and if the Customer to the address specified in the ensuing information form. Either party may change its email address for notices by giving notice to this effect and specifying the new notice email address. Notices are deemed given when sent. 15. Entire Agreement. This Agreement, together with the Credit Card Authorization, constitutes the entire agreement between the parties, and supersedes any and all prior agreements, oral or written, concerning the subject matter hereof. Except to the extent expressly provided herein, neither party has made any representation to the other. 16. Amendments. BoatStock.com™ may amend the terms of this Agreement by posting a notice to this effect at its Web site and/or by emailing such notice to the Customer no less than 30 days prior to the effective date of such amendment.. 17. No Waiver. No failure or delay by BoatStock.com™ at any time to enforce any provision of this Agreement or exercise any rights or remedies hereunder shall be construed as a waiver or relinquishment of any such provision, right or remedy; and the Agreement and all provisions thereof shall remain in full force and effect notwithstanding any such failure or delay 18. Governing Law. This Agreement shall be interpreted in accordance with and shall be governed by the laws of the State of New Jersey without applying any principles of conflicts of law. 19. Jurisdiction for Dispute Resolution. The parties hereby irrevocably consent to the exclusive personal and subject matter jurisdiction of any State or United States District Court sitting in the State of New Jersey in connection with any and all disputes concerning the subject matter of this Agreement revised 7-2005
Terms and Conditions of Use
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