PRODUCT USE AND LICENSE AGREEMENT
This Product Use and License Agreement (“Agreement”) is made between Arditi Holdings LLC (DBA Boat Innovation) (“Product Provider”) and you, the end user (“You”), in connection with Your use of the Automatic Fender App and the Automatic Fender™ (collectively, the “Product”).
The Automatic Fender eliminates the need to climb on the hull to deploy fenders, significantly reducing the risk of falling or injury while docking! Now one can dock without leaving the cockpit, improving safety and eliminating hassle. The fenders are stored horizontally under the railing, almost invisible eliminating the need for fender Baskets or other fender storage.
The Automatic Fender™ Care and Operation Instructions contains important information on personal safety and property damage.
1. BY CLICKING THE ACCEPTANCE BUTTON OR ACCESSING, USING OR INSTALLING THE PRODUCT OR THE AUTOMATIC FENDER APP, YOU EXPRESSLY AGREE TO, AND CONSENT TO BE BOUND BY, ALL OF THE TERMS OF THIS AGREEMENT AND AGREE TO READ AND FOLLOW THE AUTOMATIC FENDER™ CARE AND OPERATION INSTRUCTIONS, DATED MAY 2019 OR NEWER. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT YOU MAY NOT ACCESS, USE OR INSTALL ANY PART OF THE PRODUCT.
2. The boat may pull the fenders with a very significant force that creates tension on the fender line and may cause serious injury, particularly if a body part is wrapped in the line.
You agree to use the Product safely. Such use includes abiding by the following requirements:
Stay clear while docking. Keep yourself and others away from the Automatic Fender and fender while docking.
Do not touch the Automatic Fender. Make sure no one touches or pulls on any part of the Automatic Fender.
Do not attempt to repair, open or modify the Automatic Fender. All repairs must be made by the Product Provider only.
Do not use in rough weather or high waves.
Do not exceed the Automatic Fender’s max rating.
3. The Automatic Fender App is licensed, not sold, to You for use only under the terms of this license. The Product Provider reserves all rights in and to the Automatic Fender App not expressly granted to You.
4. You are granted a non-transferable license to use the Automatic Fender App solely in connection with your use of the Automatic Fender. The license granted to You for the Automatic Fender App is limited to a non-transferable license to use the Automatic Fender App on any compatible hand-held device or pad that You own or control. This license does not allow You to use the Automatic Fender App on any compatible device that You do not own or control, and You may not distribute or make the Automatic Fender App available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Automatic Fender App. You may not copy (except as expressly permitted by this license), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Automatic Fender App, any updates, or any part thereof (except as, and only to the extent that, any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Automatic Fender App). The terms of this license will govern any upgrades provided by Product Provider that replace and/or supplement the original Automatic Fender App, unless such upgrade is accompanied by a separate license, in which case the terms of that license will govern.
5. You represent and warrant to the Product Provider that: (i) you are over the age of eighteen (18) and have the power and authority to enter into and perform your obligations under this Agreement; (ii) you shall comply with all terms and conditions of this Agreement; and (iii) you have provided accurate and complete registration information.
6. You agree that Product Provider may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the Product. Product Provider may use this information, as long as it is in a form that does not personally identify You, to improve its products or to provide services or technologies to You and others.
7. The license to the Automatic Fender App is effective until terminated by You or Product Provider. Your rights under this license will terminate automatically without notice from the Product Provider if You fail to comply with any term(s) of this Agreement. Upon termination of the license to the Automatic Fender App, You shall cease all use of the Automatic Fender App, and destroy all copies, full or partial, of the Automatic Fender App. The respective rights and obligations of the parties under numbered paragraphs 1, 2, 3, 6, 7, 8, 9, 10, 11, 12, 14, and 15 shall survive any termination or expiration of this Agreement.
8. EXCEPT AS PROVIDED IN THE WRITTEN WARRANTY (AS DEFINED IN NUMBERED SECTION 15, BELOW), YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF THE PRODUCT IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. EXCEPT AS PROVIDED IN THE WRITTEN WARRANTY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCT IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND PRODUCT PROVIDER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PRODUCT EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. PRODUCT PROVIDER DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE PRODUCT, THAT THE PRODUCT WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PRODUCT WILL BE CORRECTED. PRODUCT PROVIDER IS NOT RESPONSIBLE FOR DATA CHARGES YOU MAY INCUR FOR DOWNLOADING OR STREAMING FILES OVER A DATA CONNECTION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PRODUCT PROVIDER OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE PRODUCT PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
9. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL PRODUCT PROVIDER BE LIABLE FOR PERSONAL INJURY, DAMAGE TO THE BOAT OR DOCK, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PRODUCT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF PRODUCT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. OPERATION OF THE PRODUCT IS NOT ALLOWED IN SUCH JURISDICTIONS.
IN NO EVENT SHALL PRODUCT PROVIDER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE AMOUNT OF FIFTY UNITED STATES DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10. You may not use or otherwise export or re-export the Product except as authorized by United States law and the laws of the State of California. In particular, but without limitation, the Product may not be exported or re-exported: (i) into any U.S. embargoed countries, or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Product, you represent and warrant that you are not located in any such country or on any such list.
11. The Automatic Fender App and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users: (i) only as Commercial Items, and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
12. The laws of the State of California govern this Agreement and your use of the Product. Any action or proceeding arising directly or indirectly from this Agreement shall be litigated in an appropriate state or federal court in the County of Contra Costa, State of California.
13. Product Provider reserves the right at any time to modify this Agreement and to add new or additional terms or conditions on your use of the Product. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Your continued use of the Product will be deemed acceptance thereof.
14. THE PRODUCT MAY BE SUBJECT TO A SEPARATE WRITTEN PRODUCT WARRANTY WHICH ACCOMPANIES THE PRODUCT (“WRITTEN WARRANTY”). EXCEPT AS PROVIDED IN THE WRITTEN WARRANTY, PRODUCT PROVIDER DOES NOT PROVIDE ANY GUARANTEE, REPRESENTION, OR WARRANTY FOR THE PRODUCT.
IT IS YOUR SOLE RESPONSIBILITY TO READ THE CARE INSTRUCTIONS, AND INSTALL AND USE THE PRODUCT IN A MANNER THAT IS CONSISTENT WITH PRODUCT PROVIDER’S INSTRUCTIONS AND WILL NOT CAUSE ACCIDENTS, PERSONAL INJURY OR PROPERTY DAMAGE. YOU ARE SOLELY RESPONSIBLE FOR OBSERVING SAFE BOATING PRACTICES. YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE PRODUCT IS AT YOUR SOLE RISK. PRODUCT PROVIDER DOES NOT ASSUME ANY LIABILITY FOR, AND SHALL NOT BE RESPONSIBLE FOR, ANY USE OF THE PRODUCT, INCLUDING BUT NOT LIMITED TO ANY DAMAGES OR PERSONAL INJURY INCURRED AS A RESULT OF USING THE PRODUCT. EXCEPT AS EXPRESSLY STATED IN THE WRITTEN WARRANTY, THE PRODUCT IS PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.
IN NO CASE SHALL PRODUCT PROVIDER, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE PRODUCT OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE PRODUCT, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE PRODUCT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. BECAUSE SOME COUNTRIES, STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH COUNTRIES, STATES OR JURISDICTIONS, PRODUCT PROVIDER'S LIABILITY SHALL BE LIMITED TO THE EXTENT SUCH LIMITATION IS PERMITTED BY LAW.
EXCEPT AS OTHERWISE PROVIDED IN THE WRITTEN WARRANTY, PRODUCT PROVIDER DOES NOT REPRESENT OR GUARANTEE THAT THE PRODUCT WILL BE FREE FROM DEFECT, AND YOU HEREBY RELEASE PRODUCT PROVIDER FROM ANY LIABILITY RELATING THERETO. IN NO EVENT SHALL PRODUCTPROVIDER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE AMOUNT OF FIFTY UNITED STATES DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
BY USING THE PRODUCT, YOU AGREE, TO THE EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD PRODUCT PROVIDER, ITS MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIM ARISING OUT OF YOUR BREACH OF THIS AGREEMENT, YOUR IMPROPER USE OF THE PRODUCT, OR ANY ACTION TAKEN BY PRODUCT PROVIDER AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT, OR AS A RESULT OF A FINDING OR DECISION THAT A BREACH OF THIS AGREEMENT HAS OCCURRED. YOU AGREE THAT YOU SHALL NOT SUE OR RECOVER ANY DAMAGES FROM PRODUCT PROVIDER, ITS MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS AS A RESULT OF ITS DECISION TO REFUSE TO PROCESS ANY INFORMATION, TO WARN YOU, TO SUSPEND OR TERMINATE YOUR ACCESS TO THE PRODUCT, OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF PRODUCT PROVIDER'S CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT.
IF YOU ARE A QUALIFIED PUBLIC EDUCATIONAL OR GOVERNMENT INSTITUTION AND ANY PART OF THIS AGREEMENT, SUCH AS, BY WAY OF EXAMPLE, ALL OR PART OF THE INDEMNIFICATION SECTION, IS INVALID OR UNENFORCEABLE AGAINST YOU BECAUSE OF APPLICABLE LOCAL, NATIONAL, STATE OR FEDERAL LAW, THEN THAT PORTION SHALL BE DEEMED INVALID OR UNENFORCEABLE, AS THE CASE MAY BE, AND INSTEAD CONSTRUED IN A MANNER MOST CONSISTENT WITH APPLICABLE GOVERNING LAW.
15. If you chose the monthly payment option you agree to pay and authorize the Product Provider to collect from your account a monthly payment of US$9.95 plus the applicable taxes per each Automatic Fender until the product is returned to the Product Provider. The Product has to be returned undamaged and with normal ware only. There is no monthly payment if at time of purchase you paid for the product full payment using the single pay option.
16. Arbitration. You and the Product Provider agree that any dispute or claim in law or in equity arising out of this Agreement shall be decided in Contra Cost County, California, by a single arbitrator in neutral binding arbitration in accordance with the rules of the American Arbitration Association, and not by court action, except as provided by California law for judicial review of arbitration proceedings. Judgment upon the award rendered by the arbitrator(s) may be entered in a court having jurisdiction thereof. Any matter involving the protection of a party’s intellectual property shall be excluded from arbitration hereunder. The filing of a judicial action to enable the recording of a notice of pending action, for order of attachment, receivership, injunction, or other provisional remedies, shall not constitute a waiver of the right to arbitrate under this provision. You and Product Provider agree to resolve any dispute that is in arbitration on an individual basis only, and not on a class, collective action, or representative basis (“Class Action Waiver”). The Arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. The Arbitrator shall have no authority to consider or resolve any claim or issue any relief on a class, collective, or representative basis. Notwithstanding any other provision of this Agreement, disputes regarding the enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction in Contra Costa County, California, and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class, collective, and/or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.