HOBA Boat Captain Agreement
Last Modified December 16, 2016
Boat Captain Relationship with Company.
This Agreement sets forth the terms and conditions of Boat Captain's use of Company's products, software, services and website(s) (collectively "Services") (Company and Boat Captain are referred to herein each as a "Party," and collectively as the "Parties"). If Boat Captain does not agree to all of the Terms, Boat Captain must not use Company's Services. Company reserves the right to deny use of its Services to anyone at any time for any reason. Failure to comply with the Terms may result in denial of access to Company's Services and cancellation of Boat Captain's account with the Company.
"Customer", "Rider", or "User" means a person or organization that purchases boat transportation services from Boat Captain with the assistance of Company's Services. "Hoba Website", or "Website" means the World Wide Web Website owned by Company and which has the URL http://www.hobarides.com and any and all other web Websites owned or operated by Company over which Company offers online advertisement services.
"Boat Captain", or "you" means any registered user of Company's Services that uploads boat transportation solicitations and any related information to Company's Website for the purposes of holding out and offering boat transportation services through the Company Website. Boat Captains include any party involved in offering or providing boat transportation services to Company Users.
Boat Captain accepts the terms and conditions of this Agreement by:
(i) clicking to accept or agree to the terms and conditions of this Agreement, where this option is made available by Company in the user interface for any Service; or, (ii) by actually using the Services. In the case of
(ii), Boat Captain understands and agrees that its use of the Services constitutes and denotes acceptance of this Agreement, including all of its terms and conditions, from that time onward.
Website Uptime and Display of Boat Captain-Generated Content. Uptime.
Company will use commercially reasonable efforts to ensure that interfaces to Boat Captain’s and User’s access to Company Services are available without interruption, except for any scheduled down time needed to maintain the effective operation of the Company Website and when service interruptions are caused by conditions outside of the Company's control. Company in no way guarantees that Services will be available without interruption.
Boat Captain- Generated Content.
You understand that all messages, text, postings, files, photos, images or other materials (the "Content") you post on, transmit through, or link from the Website, are your sole responsibility. You agree that Company is only acting as a passive conduit for your online distribution and publication of your Content. More specifically, you are entirely responsible for each individual item of the Content that you make available via the Website. Company makes no representation or warranty as to the authenticity, accuracy or completeness of the information contained on the Website.
In submitting Content, you represent and warrant that you have sufficient authority and rights to post such Content, and to grant Company the rights to use such Content in connection with providing the Services. Company is not responsible for any inaccuracy or incompleteness in the information provided by Boat Captain. It is the Boat Captain's obligation to ensure the accuracy of all listing Content (accuracy of boat description, seaworthiness of boat, qualifications of captain, legal requirements, identification requirements for Riders, insurance, etc.).
If Boat Captain discovers that listing details are inaccurate or incorrect, it is the Boat Captain's sole responsibility to correct the information in the Boat Captain account interface or contact a Company representative to resolve any such error. We may, without notice to you, suspend or cancel your listing at any time even without receiving notice from you or giving notice to you if we suspect, in our sole discretion, that your account with us or your email account is being used in an unauthorized or fraudulent manner.
Posting any Content that Company deems threatening, defamatory, infringing, unlawful, abusive, obscene, vulgar, indecent, inflammatory, sexually explicit, pornographic, profane, libelous, harassing, or otherwise objectionable is prohibited. You also agree to not post Content that violates any third-party rights, including any Intellectual Property Rights, rights of publicity and privacy. Company reserves the right to remove Content at its sole discretion.
You retain all your rights in your Content. By posting such Content you grant Company an irrevocable, sub-licensable, transferable, perpetual, non-exclusive, royaltyfree, worldwide license to use, duplicate, modify, publish, list information regarding, alter, translate, distribute, publicly perform, publicly display, and make derivative works of, all such Content and your name, voice, and/or likeness as contained in your Content, in whole or in part, and in any form, media or technology now known or developed in the future for use in Company's (and its successors' and affiliates') business. You also hereby grant each User of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the use of Company's Service.
If you choose to use the Company's photography service, you agree that Company will own all right, title and interest in and to the copyright rights in the resulting images.
Boat Captain Obligations Registration.
Prior to using Services, Boat Captain is required to register on the App, and perform all actions necessary to comply with the Company’s App registration requirements and the Terms.
Company is Only a Venue.
Company acts as a venue for Riders and Boat Captains who use the Company platform under license to view and post available boats to facilitate boat transportation services. The Company is not a party to any actual agreement or transaction between Riders and Boat Captains. As a result, Company has no control over the accuracy or correctness of the content or information provided by Riders.
Responsibility for applicable laws, rules and regulations.
Boat Captain agrees that he or she is responsible for, and agree to abide by, all laws, rules and regulations applicable to their use of the Website, their use of any tool, service or product offered on the Website, and any transaction they enter into in connection with their use of the Website.
Boat Captains further agree that they are responsible for and agree to abide by all laws, rules and regulations applicable to the advertisement of boats, the conduct of their rental business, and the operation of any boat advertised on the Website, including but not limited to taxes, permit or license requirements, inspection and safety compliance, and verification of Rider’s identification and travel documentation, as applicable. It is the Boat Captain's responsibility to:
(i) fully vet, train, and make Company Users aware of safety features, and ensure that there is proper insurance coverage for such Users;
(ii) ensure they meet all local regulations and licensing for boat transportation services;
(iii) ensure his or her boat vessel is well-maintained, seaworthy, and safe to provide boat transportation services;
(iv) enter into a separate agreement with Company Users, such as a Boat Charter Agreement, prior to providing boat transportation services or related services.
Representation and Warranties of Boat Captain.
Boat Captain hereby represents and warrants as follows:
- Boat Captain warrants and represents that he or she is eligible to provide services as an Independent Contractor, and that he or she shall never be construed to be an agent or employee of Company.
- Boat Captain warrants and represents that he or she: (1) has and will maintain the required credentials and be able to verify his or her qualifications and the licensing necessary to perform the boat transportation services at all times during boat transportation services, and (2) is otherwise fully qualified to perform boat charters in a lawful, safe and proper manner.
- Boat Captain warrants and represents that he or she has or will examine the Boat prior to the beginning of the Charter to confirm to the best of his or her abilities that it is in a good and seaworthy condition. Boat Captain agrees to immediately advise Rider(s) if, at any time, Boat Captain finds or suspects any condition on board the Boat to be unsafe.
- Boat Captain warrants and represents that he or she has or will examine the Boat’s safety equipment prior to the beginning of the Charter to confirm that the equipment is adequate, in good condition and readily accessible.
- Boat Captain warrants and represents that he or she has been notified of the Coast Guard’s zero tolerance policy towards drugs and that under no circumstances will he or she engage in any illegal activity while on board the Boat, nor will Boat Captain use the Boat for any unlawful purpose.
- Boat Captain warrants and represents that he or she will personally perform the boat transportation services, and he or she will not assign or delegate the boat transportation services.
- Boat Captain warrants and represents that he or she does not have any physical and/or medical conditions that would affect Boat Captain’s ability to provide boat transportation services.
User-Boat Captain Communications.
You agree that, with respect to other Boat Captains' or Users' personal information that you obtain directly or indirectly from or through the App or through any App-related communication, transaction or software, we have granted to you a license to use such information only for:
(a) App-related communications that are not unsolicited commercial messages,
(b) using services offered through the App, and
(c) inquiring about or otherwise facilitating a financial transaction between you and the other Boat Captain or User related to the purpose of the Website (such as inquiring about or booking a boat transportation service and transacting payment).
Any other purpose will require express permission from the User. You may not use any such information for any unlawful purpose or with any unlawful intent. In all cases, you must give Users an opportunity to remove themselves from your address book or database and a chance to review what information you have collected about them. In addition, under no circumstances, except as defined in this provision, may you disclose personal information about another Boat Captain or User to any third party without both our consent and the consent of the Boat Captain or User. You agree that other Boat Captains or Users may use your personal information to communicate with you in accordance with this provision. Further, you agree that you will protect Boat Captains' or Users' personal information with the same degree of care that you protect your own confidential information (using at minimum a reasonable standard of care), and you assume all liability for the misuse, loss, or unauthorized transfer of such information.
We do not tolerate spam or unsolicited commercial electronic communications of any kind. Therefore, without limiting the foregoing, you are not licensed to add a Boat Captain or User, even a User who has obtained boat transportation services from you, to your mailing list (e-mail or physical mail) without the Boat Captain's or User's express consent. You may not use any tool or service on the Website to send spam or unsolicited commercial electronic communications of any kind or in any other way that would violate the Terms. You are responsible for all content you provide to the Website or through any tool or service provided on the Website and for your use of any personal information of Users you obtain through the Website or otherwise in connection with your participation in the Services.
Content and Layout.
All Content and copy edits submitted by Boat Captains are subject to review and approval at Company's sole discretion. We reserve the right to refuse to publish any Content that we determine, in our sole discretion, does not comply with the Terms or is otherwise unacceptable to us. However, we assume no duty to review Content and we shall not have any liability for any loss or damage resulting from the design or positioning of the copy, properties, Content and/or photographs or any change made to any Content, photograph or copy submitted by any User. All Content must meet these Terms. We reserve the right to edit Content submitted to the Website in a non-substantive manner solely to cause the Content to comply with our Content guidelines or formatting requirements. Boat Captains are responsible for reviewing and ensuring that any Content displayed on the Website appears as the Boat Captain intended.
IN THE EVENT OF A DISPUTE BETWEEN A RIDER AND BOAT CAPTAIN ARISING FROM ANY BOAT TRANSPORTATION SERVICE OR SEPARATE AGREEMENT BY AND BETWEEN THE RIDER AND BOAT CAPTAIN, YOU HEREBY RELEASE AND HOLD COMPANY AND ITS DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES HARMLESS FROM ANY CLAIMS, COSTS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS' FEES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
Boat Captain (the "Indemnifying Party") will defend and indemnify Company (the "Indemnified Party") against any and all claims, losses, costs and expenses, including reasonable attorneys' fees, that the Indemnified Party may incur as a result of claims in any form by third parties arising from: (a) the Indemnifying Party's intentional tortious or negligent acts or omissions (including, without limitation, noncompliance with any applicable legal and/or regulatory requirements); (b) the Indemnifying Party's breach of any representation, warranty or covenant set forth herein; (c) the infringement of any third party's intellectual property by any trademarks or other intellectual property provided by the Indemnifying Party to the Indemnified Party; and (d) the Indemnifying Party's failure to collect all taxes, fees and charges that may be applicable to the boat transportation services being offered by the Indemnifying Party.
Boat Charter Agreement.
Hoba, Inc. (the “Company”) does not itself offer or provide boat transportation services. The Company website, at http://www.hobarides.com simply connects boat Riders with Boat Captains for boat rides and charters. The Company is NOT a party to this Boat Charter Agreement which exists solely between Rider and Boat Captain. Both parties must read this Boat Charter Agreement carefully and make certain to understand its terms and conditions as this Boat Charter Agreement impacts legal rights and imposes obligations.
FOR AND IN CONSIDERATION of the mutual promises and agreements contained herein, Rider seeks boat transportation services from Boat Captain, and Boat Captain agrees to provide boat transportation services for Rider under the terms and conditions hereby agreed upon by the parties in connection with the Rider’s use of Boat Captain’s boat transportation services through the Company’s Services and App.
a) Boat Captain: The person or entity that has registered on the Company website and App and has title to the boat.
b) Rider: The person that has booked boat transportation services through the App, and any authorized passengers of the person that has booked boat transportation services through the App.
c) Boat: The vessel to be chartered hereunder per the accepted reservation between Boat Captain and the Rider.
d) Company: A peer-to-peer boat transportation marketplace mobile application and online service provided by Hoba, Inc.
e) Charter: Boat transportation services provided to Rider by Boat Captain.
SECTON 1 – SERVICES TO BE PERFORMED
1.1 Term. Rider agrees to contract for boat transportation services from Boat Captain for such period of time as designated in the Rider’s reservation of the boat transportation services through the App (the “Reservation”). Times for pick-up of the Rider and return of Rider are subject to extensions resulting from force majeure events. Force majeure is defined as any cause directly attributable to acts, events, non-happenings, omissions, accidents, or Acts of God, beyond the reasonable control of the Boat Captain or the Rider (including, but not limited to, strikes, lockouts or other labor disputes, civil commotion, riots, adverse weather, invasion, war, fire, explosion, sabotage, storm, collision, grounding fog, governmental act or regulation, major mechanical or electrical breakdown beyond the Boat Captain’s or the Rider’s control and not caused by either the Boat Captain or the Rider’s negligence).
a) Report promptly to Rider any observable deficiencies in the Boat which causes concerns for the safety of Rider, Boat Captain, passengers or property, including the Boat, property of the Boat Captain and/or Rider, and third-party property.
b) Pilot and maintain control of the Boat in a safe and legal manner exhibiting seamanlike conduct at all times.
c) Comply with all relevant Federal, State and Local laws and regulations applicable to the performance of the Duties and the operation of the Boat as well as any equipment used in the performance of the Duties.
d) Take reasonable and prudent actions as deemed necessary by the Boat Captain to protect and preserve the safety of persons and property.
e) Use best efforts to make any necessary repairs, if reasonably possible, to protect the safety of the Rider, and any guests of the Rider onboard the Boat, the Boat; and any property at risk.
f) Clean and refuel the Boat prior to providing boat transportation services, as necessary.
1.3 Location of service. The Duties will commence and end at the marina or pickup location designated in the App.
SECTION 2 – FEES
2.1 Captain Fee. In consideration of the boat transportation services to be rendered by Boat Captain to Rider, Rider shall pay Boat Captain the rate designated and agreed upon in the Reservation Confirmation screen of the App, incorporated herein.
2.2. Pay Agent. The Boat Captain has authorized Company to act in the capacity of pay agent on Boat Captain’s behalf for purpose of collecting the fees described in Section 2.1. All parties hereto direct Company to collect fees from the Rider and to pay Boat Captain based on the Reservation fees and in accordance with the Terms.
2.3 Taxes and Withholding. The Boat Captain acknowledges he or she is an independent contractor and shall be responsible for payment of his or her own income taxes, social security, worker’s compensation and other relevant taxes regardless of the venue.
SECTION 3 – REPRESENTATIONS AND WARRANTIES OF BOAT CAPTAIN
3.1 Boat Captain warrants and represents that he or she is eligible to provide services as an Independent Contractor, and that he or she shall never be construed to be an agent or employee of Rider or Company.
3.2 Boat Captain warrants and represents that he or she: (1) has and will maintain the required credentials and be able to verify his or her qualifications and the licensing necessary to perform the Duties at all times during boat transportation services, and (2) is otherwise fully qualified to perform all Duties required by this Boat Charter Agreement in a lawful, safe and proper manner.
3.3 Boat Captain warrants and represents that he or she has or will examine the Boat prior to the beginning of the Charter to confirm to the best of his or her abilities that it is in a good and seaworthy condition. Boat Captain agrees to immediately advise Rider if, at any time, Boat Captain finds or suspects any condition on board the Boat to be unsafe.
3.4 Boat Captain warrants and represents that he or she has or will examine the Boat’s safety equipment prior to the beginning of the Charter to confirm that the equipment is adequate, in good condition and readily accessible.
3.5 Boat Captain warrants and represents that he or she has been notified of the Coast Guard’s zero tolerance policy towards drugs and that under no circumstances will he or she engage in any illegal activity while on board the Boat, nor will Boat Captain use the Boat for any unlawful purpose.
3.6 Boat Captain warrants and represents that he or she will personally perform the Duties and he or she will not assign or delegate the Duties.
3.7 Boat Captain warrants and represents that he or she does not have any physical and/or medical conditions that would affect Boat Captain’s ability to provide the herein Duties.
SECTION 4- AGREEMENT TO INDEMNIFY, DEFEND & HOLD-HARMLESS
4.1 The Rider agrees to assume all responsibility for loss or damage from any cause to the Rider and any guest or passenger of the Rider and/or their personal property during the Charter. The Rider further assumes all risk involved in the Charter and Boat’s equipment and acknowledges the inherent and natural hazards and perils of boating.
4.2 Rider agrees to indemnify, defend, and hold Company and their successors, insurers, officers, directors, agents and/or employees harmless against and from any and all actions, causes of action, claims, demands, costs, liabilities, liens, expenses and damages (including attorney’s fees) arising out of, or in connection with any breach of this Boat Charter Agreement or any acts or omissions of Boat Captain or Rider in connection with the Charter or this Boat Charter Agreement.
4.3 Rider agrees to indemnify, defend, and hold Boat Captain harmless against and from any and all actions, causes of action, claims, demands, costs, liabilities, liens, expenses and damages (including attorney’s fees) arising out of, or in connection with, any breach of this Boat Charter Agreement or any acts or omissions of Rider arising from or related to the Charter or this Boat Charter Agreement.
4.4 Boat Captain agrees to indemnify, defend, and hold Rider harmless against and from any and all actions, causes of action, claims, demands, costs, liabilities, liens, expenses and damages (including attorney’s fees) arising out of, or in connection with, any breach of this Boat Charter Agreement or any acts or omissions of Boat Captain arising from or related to the Charter or this Boat Charter Agreement.
SECTION 5 — TERMINATION
5.1 All parties acknowledge Boat Captain or Rider may terminate this Boat Charter Agreement on the basis of a force majeure event (war, terrorism, Acts of God, etc.) or unforeseen circumstances outside of Rider’s or Boat Captain’s control.
5.2 Rider may terminate this Boat Charter Agreement at any time for reasonable cause, including, without limitation, the Boat Captain’s failure to timely appear for the Charter or properly perform his duties as Boat Captain, inappropriate conduct toward Rider or any guests of Rider or third parties, breach of this Boat Charter Agreement, breach of any applicable policies and/or conduct that places Rider or any guests of Rider or third parties in danger.
5.3 In the event of a termination after the Charter has commenced, the Boat Captain agrees to safely return the Rider and those aboard to the marina of redelivery as shown on the Reservation Confirmation.
5.4 In the event of a termination by Rider after the Charter has commenced, Boat Captain shall be paid only for the service actually performed prior to the termination.
5.5 In the event of a termination by Boat Captain, Rider shall be entitled to damages from Boat Captain not to exceed the amount of the fee that would have been payable to the Boat Captain had the Boat Captain performed the entire anticipated service.
SECTION 6 – LAW & DISPUTE RESOLUTION
6.1 This Boat Charter Agreement and the rights of the parties hereto shall be governed by and shall be construed in accordance with the general maritime law of the United States with the laws of the State of South Carolina to supplement as legally permissible.
6.2 All claims and disputes of whatsoever nature howsoever arising out of or relating to this Boat Charter Agreement shall be settled by binding arbitration with Arbitration Resolution Services (“ARS”). The parties expressly agree to abide by any and all rules of ARS as found in their web site at www.arbresolutions.com. Any award issued by ARS may be converted to a judgment by a court of competent jurisdiction.
SECTION 7 — MISCELLANEOUS PROVISIONS
7.1 No waiver of any provision of this Boat Charter Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
7.2 This Boat Charter Agreement, including the documents incorporated by reference herein, constitutes the entire agreement between the parties pertaining to its subject matter and it supersedes all prior contemporaneous agreements, representations and understandings of the parties. No supplement, modification or amendment of this Boat Charter Agreement, other than those identified herein, shall be binding unless executed in writing by all parties.
7.3 If any provision of this Boat Charter Agreement is held unenforceable, then such provision will be modified to reflect the parties’ intention. All remaining provisions of this Boat Charter Agreement shall remain in full force and effect.
7.4 In the event of any conflict between this Boat Charter Agreement (or any portion thereof) and any other agreement or document identified and incorporated herein, the terms of this Boat Charter Agreement shall prevail.