Membership Agreement

BoatQuest Membership Agreement

Please read the Membership Agreement carefully.  Your consent to comply with the Membership Agreement is a binding legal contract between you and Yachting Promotions, Inc. d/b/a/ BoatQuest.com. This Membership Agreement is made and entered into between Yachting Promotions, Inc. d/b/a BoatQuest.com (“BoatQuest”), a corporation with its principal offices located at 1115 NE 9th Avenue, Fort Lauderdale, FL 33304, and the individual brokerage or other business that you represent.  The terms “you” and “your” as used in this Membership Agreement refer to that individual brokerage or other business.

 

1. Introduction: BoatQuest reserves exclusively to BoatQuest Members access to some of its features and content, including, without limitation, the ability to post vessel listings (the “Members-Only Features”).  This Membership Agreement governs your access to and use of the Members-Only Features.  By accessing or using the Members-Only Features, you are agreeing to comply with this Membership Agreement, as well as any other agreements and policies that may apply to you, including, without limitation, the BoatQuest Terms of Use and the BoatQuest Privacy Policy. BoatQuest’s acceptance of the Membership Agreement is conditioned upon satisfactory verification and approval by BoatQuest of your eligibility, including, without limitation, your credit information.

2. Effective Date of the Membership Agreement; Term of the Membership Agreement; Renewal: This Membership Agreement shall take effect as of the Effective Date, defined as the earlier of: (i) the date you accept the terms of this Membership Agreement by clicking the ["I Accept"] button when asked to accept this Membership Agreement on the BoatQuest.com website, or (ii) the date you first access the Members-Only Features on the BoatQuest.com website. Unless otherwise changed by BoatQuest, this Membership Agreement shall take effect on the Effective Date as defined above, and shall remain in full force and effect for one (1) year thereafter (the “Initial Term”).  After the end of the Initial Term, the Membership Agreement shall renew from month to month, until terminated either by BoatQuest, as provided in Section 5, or by you, as provided in Section 6.

3. Changes to the Membership Agreement: After the end of the Initial Term, BoatQuest may change the terms of the Membership Agreement and / or the membership subscription fees at its sole discretion by notifying you via e-mail.  The changes to the Membership Agreement and / or the membership subscription fees shall be effective as of the first day of the month following the notification to you as set forth above.  By accessing the Members-Only Features after receiving the notification of the changes to the Membership Agreement and / or the membership subscription fees, you agree to the terms of the revised Membership Agreement and / or to the revised membership subscription fees.

4. Payment: You agree to pay all fees that you incur by using, accessing, or having access to the Members-Only Features, subject to the rates in effect for the billing period during which you incur such fees.  You agree to pay your invoices in full upon receipt.  If BoatQuest does not receive your payment in full by the due date on your invoice, your outstanding unpaid balance shall be subject to a late payment charge at an interest rate of 1.5% per month, compounded daily, subject to the maximum allowed by law.  You agree to reimburse BoatQuest for all collection expenses, including, without limitation, court costs and reasonable attorney fees, expended by BoatQuest in recovering any outstanding balance.  If your account becomes more than sixty (60) days past due, BoatQuest reserves the right to disable your account, and you may be subject to a reactivation fee before your access is restored. Your payment is due on the first day of your first full month of access to the Members-Only Features, and on the first day of each month thereafter, in advance of that month’s access.  Your first payment will also include the fees you incurred for the first partial month of service, if applicable, billed on the prorated basis.  You agree to provide BoatQuest with a valid major credit card and to maintain a valid major credit card on file with BoatQuest.  You may authorize BoatQuest to charge your credit card on file automatically (the “Automatic Payment Option”).  If you select the Automatic Payment Option, BoatQuest will bill your credit card every month, in advance of that month’s services.

5. Termination by BoatQuest: BoatQuest may terminate this Membership Agreement, cease providing the Members-Only Features, and / or disable your access to the Members-Only Features at any time and at its sole discretion (the “Termination by BoatQuest”).  If, at the time of the Termination by BoatQuest, you are not in breach of the Membership Agreement, BoatQuest shall refund to you the advance payment for the month when the  Termination by BoatQuest occurs, prorated for the number of days remaining in that month. If you breach the Membership Agreement, BoatQuest may, at its sole discretion, terminate this Membership Agreement, disable your access to the Members-Only Features, and retain any payments you have made to BoatQuest.  In addition, BoatQuest may seek any and all remedies for your breach of the Membership Agreement available to it under the law. You agree that you own no property rights in the Universal Resource Locator Internet address (“URL”) assigned to you by BoatQuest.  You further agree that, upon termination of this Membership Agreement, BoatQuest may assign that URL to a different customer.

6. Termination by You: You may terminate this Membership Agreement solely by written notice to BoatQuest (the “Termination Notice”).  To be effective, your Termination Notice must include: a. your name; b. your telephone number; c. your Member ID or BoatQuest Username; and d. the reason for termination.

You may send the Termination Notice to BoatQuest by:

  1. U.S. Mail;
  2. e-mail at sales@boatquest.com; or
  3. facsimile at 954-462-4140 (only if you are located in the United States).

If BoatQuest receives your Termination Notice more than thirty (30) days before the end of the Initial Term of the Membership Agreement, the Effective Termination Date of the Membership Agreement shall be the last day of the Initial Term.  If BoatQuest receives your Termination Notice fewer that (30) days before the end of your current subscription term, the Effective Termination Date of the Membership Agreement the last day of the subsequent month.

You agree that transmitting the Termination Notice to BoatQuest does not waive your obligation to pay, and that you continue to be responsible for payment of all fees that you incur by using, accessing, or having access to the Members-Only Features until the Effective Termination Date of this Membership Agreement.  You further agree that you continue to be responsible for payment of all fees in the event that BoatQuest does not receive your Termination Notice.

  1. 7.       Acceptable Use and Confidentiality:

You agree that you will not take any of the following actions with respect to the BoatQuest.com website or the Members-Only Features that:

  1. disrupt, interfere with, or inhibit use of the BoatQuest.com website or the Members-Only Features;
  2. are unlawful, harmful, threatening, abusive, harassing, false, defamatory, libelous, slanderous, obscene, invasive of another’s privacy, or that constitute hate speech or is otherwise offensive, hateful, or abusive toward an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
  3. infringe BoatQuest’s or someone else’s intellectual property rights, including, without limitation, patent, trademark, trade secret, copyright, or right of publicity;
  4. use any robot, spider, or other such programmatic or automatic device gather, compile, use, download, or otherwise collect any user information or any text, images, audio and video materials, computer code, or other materials available at the BoatQuest.com website.

You further agree that you will:

  1. keep your BoatQuest Username and Password confidential;
  2. take all necessary steps to prevent any access to or use of the Members-Only Features by any unauthorized parties using your BoatQuest Username and Password;
  3. accept all responsibility and liability for any actions undertaken by any party using your BoatQuest Username and Password;
  4. not share, sell, rent, lease, sublicense, lend, loan, assign, time-share, or transfer your BoatQuest Username and Password;
  5. notify BoatQuest immediately upon becoming aware of any theft, loss, or unauthorized use of your BoatQuest Username and Password;
  6. not re-sell BoatQuest advertising services;
  7. not solicit or receive referral fees from the owners or sellers of vessels listed on the BoatQuest.com website in exchange for referring potential buyers to such owners or sellers.

In addition to the foregoing restrictions, you are also bound by the Acceptable Use provision of the BoatQuest Terms of Use.

  1. 8.       Intellectual Property:

BoatQuest enables you to post, upload, and / or submit information, including, without limitation, text and images to the BoatQuest.com website (the “User Submitted Materials”).  By posting, uploading, and / or submitting the User Submitted Materials to the BoatQuest.com website, you warrant and represent that you own or otherwise control all necessary rights to the User Submitted Materials, including, without limitation, the right to grant licenses to and assign the User Submitted Materials.

While you retain any copyright and other ownership rights that you may own in the User Submitted Materials that you submit to the BoatQuest Website, by posting, uploading, and / or submitting such User Submitted Materials you grant to BoatQuest a non-exclusive, perpetual, royalty-free, worldwide, irrevocable, transferable license to use, display, copy, reproduce, distribute, sublicense, modify, adapt, publish, translate, and create derivative works from your User Submitted Materials, and to incorporate them in other works in any form, media, or technology now known or later developed.  You agree that BoatQuest is under no obligation to maintain confidentiality of your User Submitted Materials.  No compensation will be paid to you or any other person or entity in connection with your submission of the User Submitted Materials or with BoatQuest’s exercise of its rights under the license described above.

BoatQuest also enables you to access text, images, audio and video materials, computer code, and other services, products, and materials on the BoatQuest.com website (the “Content”).  You agree that, with the exception of User Submitted Materials, as defined above, BoatQuest owns all rights, title, and interest in and to the Content and the BoatQuest.com website.

BoatQuest grants you a limited license to access the BoatQuest.com website and the Members-Only Features, subject to this Membership Agreement and the BoatQuest Terms of Use.  This license does not grant you the right to, and you therefore may not copy, reproduce, duplicate, download, republish, sell, resell, or create derivative works from BoatQuest.com website, the Members-Only Features, or any of the Content therein, including, without limitation, boat listings, except as expressly permitted by other provisions of this Membership Agreement, the BoatQuest Terms of Use, or by applicable law.  You may not remove or deface any notices of copyright, trademark, or other proprietary rights affixed to the Content.

  1. 9.       Listing Definitions:

“Co-Brokerage” – an arrangement of sharing earned commissions between a Listing Broker (one that has a signed agreement with the vessel owner to offer that vessel for sale) and a Selling Broker (one that represents the buyer with a signed Purchase & Sales Agreement);

Central Listing – a listing where, pursuant to a signed listing agreement with an owner of a vessel,  a broker has the exclusive right to sell the vessel on behalf of that owner, whereas the owner relinquishes the right to sell the vessel himself and agrees to pay to the broker a specified commission if the vessel is sold during the term of the listing agreement;

Open Listing – a listing where, pursuant to a signed listing agreement with an owner of a vessel, one or more brokers have the non-exclusive right to sell the vessel on behalf of that owner.  The broker that completes a successful sale during the term of the listing agreement receives a specified commission, but the owner remains free at any time to sell the vessel himself without paying a commission;

Trade-In Listing – a listing where the broker owns the vessel that is being offered for sale.

  1. 10.    Eligibility Requirements:

In order to be eligible to post vessel listings on the BoatQuest.com website, you must meet BoatQuest’s eligibility requirements.  Accordingly, you warrant and represent to BoatQuest that:

  1. you operate as a boat dealer or broker, you provide services normally associated with such a business, and you are able to produce appropriate proof thereof, including, without limitation, your dealership or brokerage business card, letterhead, storefront photo, or website URL upon BoatQuest’s request;
  2. in the event that you operate in a municipality, state, province, or country that requires boat dealers or brokers to be licensed, you are properly licensed in that jurisdiction and are able to produce a copy of the license or your license number upon BoatQuest’s request;
  3. you possess a valid business license in the name of your BoatQuest.com Account Name and are able to produce a copy of the license upon BoatQuest’s request;
  4. your office address listed in your Broker Details on the BoatQuest.com website is a physical location that is accessible to the public;
  5. you have at least three (3) discrete Central Listing vessels available for sale that are available for Co-Brokerage, all of which are owned by separate owners, none of which are owned by you, and none of which are already listed on the BoatQuest.com website.  In order to remain eligible to post vessel listings on the BoatQuest.com website, you must list on the BoatQuest.com website the greater of (i) three (3) vessels or (ii) 50% of your total listings that are available for Co-Brokerage.  Please note that new vessels, Trade-In Listing vessels, and vessels listed for less than $50,000 do not count toward the 50% eligibility calculation.
  6. (We need to add verbiage to incorporate the business of a new boat dealer. It could be a “if you are a yacht brokerage firm ‘e’. . . OR if you are a new boat dealer. . .”)

BoatQuest reserves the right to terminate or suspend your BoatQuest Membership in the event that you do not meet the above eligibility requirements.

  1. 11.    Vessel Listing Rules:

Each vessel listing must, at a minimum, specify:

  1. the listing type (e.g., Central Listing, Open Listing, Trade-In Listing, or New);
  2. whether or not the listing is available for Co-Brokerage;
  3. the vessel’s location;
  4. the vessel’s price;
  5. whether or not the vessel is available to be purchased;
  6. a text description of the vessel;
  7. the vessel’s Hull Identification Number (“HIN”), if the vessel was built after 1972.

Any previously-owned vessels that are subject of your BoatQuest.com vessel listings must exist and be available for sale at the time the listing is posted.

Any new vessels that are subject of your BoatQuest.com vessel listings must be either (i) available in-stock at your brokerage or (ii) under construction at the builder’s with a valid HIN.

The vessel price that you specify in your BoatQuest.com vessel listings must be the actual price for which the listed vessel may be acquired.  You may not state “minimum” prices, manufacturer’s suggested prices, starting auction bid prices, or any other amounts that do not reflect the actual sale price of a vessel in your BoatQuest.com vessel listings.

You must remove your BoatQuest.com vessel listings for vessels that are no longer available within seventy-two (72) hours after you lose the listing. Or, if the boat is sold, it must be marked as such with the true sale price indicated

BoatQuest limits what you may advertise in your BoatQuest.com vessel listings.  Accordingly, you agree that you will not:

  1. post FSBO Listings;
  2. advertise other brokers’ Central Listings in your list of vessels for sale on BoatQuest.com;
  3. post listings for any goods other than vessels, including, without limitation, vessel parts, vessel accessories, or vehicles;
  4. advertise any services, including, without limitation, employment, business, real estate, or other services;
  5. post listings for any vessels that are not currently available for sale;
  6. identify a BoatQuest.com vessel listing as “Sale Pending” unless you  have received and accepted a written offer and a deposit for the purchase of the vessel identified in that listing;
  7. use in your BoatQuest.com vessel listings any text, images, or other materials that originate from another broker’s website or advertising materials;
  8. mark or imprint any images or other materials used in your BoatQuest.com vessel listings with your company name, logo, trademark, or other method of identification;
  9. post any broker-specific identification or contact information in the General Description field or on the Full Specifications page of your BoatQuest.com vessel listings; such contact information may only be placed in the Custom Contact Information field of your listings;
  10. post in the Custom Contact Information field of your BoatQuest.com vessel listings any advertising or links to any websites that are not owned, controlled, or maintained by you or BoatQuest;
  11. post multiple BoatQuest.com vessel listings for the same vessel.

See Section 12 for information on how to report non-conforming BoatQuest.com vessel listings.

  1. 12.    Reporting Eligibility Violations and Vessel Listing Rules Violations:

If you believe that a BoatQuest Member’s BoatQuest.com vessel listing violates the Vessel Listing Rules as provided in Section 11 of this Agreement, of if you believe that a BoatQuest Member is ineligible to post BoatQuest.com vessel listings, per Section 10 of this Agreement, please e-mail BoatQuest directly at policies@boatquest.com.

Please note that falsely reporting an Eligibility Violation or a Vessel Listing Rules Violation may result in a corrective action taken against you.

  1. 13.    Penalties for Eligibility Violations and Vessel Listing Rules Violations:

If BoatQuest’s investigation of an Eligibility Violation or a Vessel Listing Rules Violation results in a finding that a BoatQuest Member (“Offending Member”) has violated BoatQuest’s Eligibility Requirements or Vessel Listing Rules, BoatQuest will apply the following penalties:

First Infraction:  BoatQuest will document the infraction and the resolution in the Offending Member’s record as a “First infraction / Warning,” and will notify the Offending Member of the notation. The Offending Member will be granted 24 hours to correct the infraction or BoatQuest will remove the listing from the site;

Second Infraction:  BoatQuest may suspend the Offending Member’s BoatQuest service and / or deactivate of one or all BoatQuest.com vessel listings of that member for a minimum of one business day or until the Violation has been corrected.  BoatQuest will document the infraction and the resolution in the Offending Member’s record, and will notify the Offending Member of the notation.  If the second infraction is also the Offending Member’s second violation of the Vessel Listing Rules, BoatQuest may, in its sole discretion, audit all of the Offending Member’s BoatQuest.com vessel listings;

Third Infraction:  Upon verification of a third Violation of BoatQuest’s Eligibility Requirements or Vessel Listing Rules, BoatQuest may terminate the Offending Member’s BoatQuest service.

  1. 14.    Disclaimer of Warranties:

Your use of the BoatQuest.com website, including the Members-Only Features, the Content, and the User Submitted Materials contained within, is at your sole risk.  BoatQuest does not warrant and hereby disclaims all warranties that (i) your use of the BoatQuest.com website will be uninterrupted or error-free; (ii) the Members-Only Features, the Content, or the User Submitted Materials are free of viruses, Trojan horses, worms, or other malware; or (iii) the quality of any products, services, or information obtained through the BoatQuest.com website will meet your expectations.  You agree that any Members-Only Features, Content, User Submitted Materials, or other materials that you view, download, or otherwise access through the use of the BoatQuest.com website are accessed at your own risk.  You  agree to be solely responsible for any damage to your computer system or business or loss of data that results from accessing the BoatQuest.com website or any Members-Only Features, Content, or User Submitted Materials therein.

The BoatQuest.com website, including the Members-Only Features, the Content, the User Submitted Materials, and any other information, materials, or services are provided on the “as is” and “as available” bases.  To the fullest extent permitted by law, BOATQUEST EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, ACCURACY OF DATA, OR NON-INFRINGEMENT OF ANY RIGHTS, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

  1. 15.    Limitation of Liability:

IN NO EVENT SHALL BOATQUEST, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, AFFILIATES, OR SUBSIDIARIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF USE, LOSS OF GOODWILL, AND LOSS OF DATA, RESULTING FROM OR ATTRIBUTABLE TO (i) ANY ASPECT OF YOUR USE OR MISUSE OF THE BOATQUEST WEBSITE; (ii) YOUR INABILITY TO ACCESS OR USE THE BOATQUEST WEBSITE; (iii) ANY INTERRUPTION, SUSPENSION, MODIFICATION, ALTERATION, OR TERMINATION OF THE BOATQUEST WEBSITE; (iv) YOUR RELIANCE ON ANY INFORMATION OR REPRESENTATIONS PROVIDED ON THE BOATQUEST WEBSITE OR AT THE OUTSIDE WEBSITES LINKED ON THE BOATQUEST WEBSITE; (v) ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE BOATQUEST CONTENT, USER SUBMITTED MATERIALS, OR THE CONTENT OF THE OUTSIDE WEBSITES LINKED ON THE BOATQUEST WEBSITE; OR (vi) ANY DEFAMATORY, INFRINGING, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.

In some jurisdictions, limitations of liability are not permitted.  In the event that any part of the above limitation of liability is found to be invalid or unenforceable for any reason, under no circumstances will BoatQuest, its directors, officers, employees, agents, representatives, affiliates, or subsidiaries be liable, in aggregate, for any amount in excess of one month’s subscription fee paid by you during the most recent billing period.

  1. 16.    Indemnification:

You agree to indemnify, defend, and hold harmless BoatQuest, its directors, officers, employees, agents, representatives, affiliates, subsidiaries, successors, and assigns from and against any and all claims, liabilities, losses, expenses, damages, or costs, including, without limitation, reasonable attorneys’ fees and court costs, made by any third party and arising from or attributable to (i) your User Submitted Materials; (ii) your use or misuse of the BoatQuest.com website and / or the Members-Only Features; (iii) your violation of this Membership Agreement or the BoatQuest Terms of Use; (iv) your breach or alleged breach of any of your obligations, representations, or warranties contained in this Membership Agreement; or (v) or your violation of any law or the rights of another.

  1. 17.    Miscellaneous:

This Membership Agreement, Terms of Use, together with the BoatQuest Terms of Use and the BoatQuest Privacy Policy represents the entire agreement with respect to your access to and use of the BoatQuest.com website and the Members-Only Features, and supersede any previous document, writing, agreement ,or understanding, whether written or oral, relating to your access to and use of the BoatQuest.com website or the Members-Only Features.  BoatQuest’s failure to exercise or enforce any right or provision of this Membership Agreement shall not constitute waiver of such right or provision.

This Membership Agreement shall be governed by and construed pursuant to the laws of the State of Florida without giving effect to its principles of conflicts of law. You agree that any dispute arising out of the Membership Agreement shall be brought exclusively in the Federal Court of the United States of America, Southern District of Florida or the in the courts of record of the State of Florida in Broward County.

In the event that a court of competent jurisdiction determines that any provision of this Membership Agreement is void, unenforceable, or unlawful, that provision shall be severable from the Membership Agreement, and the remainder of the Membership Agreement will continue in full force and effect.  Unenforceability of any provision in a given jurisdiction shall not make that provision unenforceable in any other jurisdiction.

BoatQuest may assign its rights and duties under the Membership Agreement to any party at any time without notice to you.  You may not assign your rights and duties under these Membership Agreement to anyone without prior written consent of BoatQuest.  This Membership Agreement does not create an employment, agency, partnership, franchise, or joint venture relationship between you and BoatQuest.

  1. 18.    Guidelines:

All ads posted must be in compliance with our guidelines. We do not wish to censor or police the ads being posted here, but in order to prevent abuses by a few people and to keep this forum comfortable and appropriate for our general audience, which includes people of all ages, races, religions, and nationalities, we reserve the right to remove any ads in violation of our guidelines that are brought to our attention. Therefore, all ads that are in violation of our guidelines are subject to being removed immediately and without prior notice and without refund or remuneration. By posting an ad here, you agree to the following statement:

I agree that I will be solely responsible for the content of all classified ads that I post under this program and that I will indemnify the BoatQuest and hold it harmless for any losses or damages to myself or to others that may result directly or indirectly from any ads that I post here.

By posting an ad here, you further agree to the following guidelines:

No foul or otherwise inappropriate language will be tolerated. The script checks for foul language and will strip it from posts, but if you try to get around this, your ad is subject to being removed immediately and without warning.

No racist, hateful, or otherwise offensive comments will be tolerated.

No ad promoting activities that would be illegal under the laws of the state or province, or the country of domicile of the BoatQuest shall be allowed. Similarly no ad promoting activities that would be illegal under the laws of the state or province, or the country of domicile of the person posting the ad shall be allowed.

Any ad that appears to be merely a test posting, a joke, or otherwise insincere or non-serious is subject to removal.

The BoatQuest reserves the ultimate discretion as to which ads, if any, are in violation of these guidelines.

Thank you. We hope that these guidelines will make the Boat Classifieds more enjoyable for everyone.