Terms of Service

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Swell Advantage Terms of Service

1. Acceptance of Terms of Service

These Terms of Service (collectively, the “Terms”), govern the access or use by you of applications, websites, content, products, and services (collectively, the “Services”) made available by Swell Advantage Ltd. and its subsidiaries and affiliates (collectively, “Swell Advantage”, the “Company”, “We”, “Us” or “Our”). Your access and use of the Services constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and Swell Advantage. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. Swell Advantage may terminate any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason and without notice. Supplemental terms may apply to certain Services, such as activities or promotions, and such supplemental terms will be disclosed to you in connection with the applicable Services. Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Services. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services. Swell Advantage may amend these Terms at any time and without notice to you. Amendments will be effective upon Swell Advantage’s posting of such updated Terms at this location or the amended policies or supplemental terms on the applicable Service. Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms as amended. Swell Advantage’s collection and use of personal information in connection with the Services is as provided in Swell Advantage’s Privacy Policy located at Swell Advantage Privacy Policy

2. Services

The Services consist of a technology platform that enables users of Our mobile application or website (each, an “Application” and collectively, the “Applications”) to arrange and schedule boat docking and mooring reservations, and/or logistics services with marinas that provide such services, including independent third party dockage providers and third party logistics providers under agreement with Swell Advantage or certain of Swell Advantage’s subsidiaries (collectively, the “Marinas”). Unless otherwise agreed by Swell Advantage in a separate written agreement with you, the Services are made available solely for your personal, non-commercial use.

YOU ACKNOWLEDGE THAT SWELL ADVANTAGE DOES NOT PROVIDE DOCKING, MOORING OR LOGISTICS SERVICES OR FUNCTION AS A DOCKING OR MOORING CARRIER. SWELL ADVANTAGE’S SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE BOAT DOCKING AND MOORING SERVICES WITH MARINAS, BUT YOU AGREE THAT SWELL ADVANTAGE HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY BOAT DOCKING, MOORING OR LOGISTICS PROVIDED TO YOU BY MARINAS THROUGH THE USE OF THE SERVICES OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS. SWELL ADVANTAGE DOES NOT GUARANTEE THE SUITABILITY, SAFETY OR ABILITY OF MARINAS. IT IS SOLELY YOUR RESPONSIBILITY TO DETERMINE IF A MARINA WILL MEET YOUR NEEDS AND EXPECTATIONS. SWELL ADVANTAGE WILL NOT PARTICIPATE IN DISPUTES BETWEEN YOU AND A THIRD PARTY PROVIDER. BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO SITUATIONS INVOLVING MARINAS THAT ARE POTENTIALLY UNSAFE, OFFENSIVE, HARMFUL TO MINORS, OR OTHERWISE OBJECTIONABLE, AND THAT USE OF MARINAS ARRANGED OR SCHEDULED USING THE SERVICES IS AT YOUR OWN RISK AND JUDGMENT. SWELL ADVANTAGE SHALL NOT HAVE ANY LIABILITY ARISING FROM OR IN ANY WAY RELATED TO YOUR TRANSACTIONS OR RELATIONSHIP WITH MARINAS.

3. Accessing the Applications and Account Security

We reserve the right to withdraw or amend the Applications, and any service or material we provide on the Applications, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Applications is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Applications, or the entire Application, to users, including registered users.

You are responsible for:

  • Making all arrangements necessary for you to have access to the Applications.
  • Ensuring that all persons who access the Applications through your internet connection are aware of these Terms and comply with them.

To access the Applications or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Applications that all the information you provide to the Applications is correct, current and complete. You agree that all information you provide to register with the Applications or otherwise, is governed by our Privacy Policy and you consent to all actions we take with respect to your information consistent with Our Privacy Policy.

 

If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Applications or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to, or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time, in our sole discretion for any or no reason if, in our opinion, you have violated any provision of these Terms.

4. Payment

(A) You understand that use of the Services may result in payments by you for the services you receive from a Marina (“Charges”). After you have received services obtained through your use of the Service, Swell Advantage will facilitate payment of the applicable Charges on behalf of the Marina, as such Marina’s limited payment collection agent, using the preferred payment method designated in your Account, and will send you a receipt by email. Payment of the Charges in such a manner shall be considered the same as payment made directly by you to the Marina. Charges will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise stated in Section 5 of these Terms or by Swell Advantage. You retain the right to request lower charges from a Marina for services received by you from such Marina at the time you receive the services.

(B) Marinas reserve the right to modify charges should such Marina determine that there is a discrepancy between your User Profile and the actual characteristics of your particular boat or vessel. For example, a discrepancy between your boat’s total length and the actual length as determined by the Marina could result in an increased charge to use the services of the Marina. Swell Advantage will respond accordingly to any request from a Marina to modify the Charges for a particular service.

(C ) All Charges are due immediately and payment shall be facilitated by Swell Advantage using the preferred payment method designated in your Account. If your primary Account payment method is determined to be expired, invalid or otherwise unable to be charged, you agree that Swell Advantage may, as the Marina’s limited payment collection agent, use a secondary payment in your Account, if available.

(D) Swell Advantage reserves the right to establish, remove and/or revise Charges for any or all aspects of the Services at any time in Swell Advantage’s sole discretion. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times/seasons of high demand of the Services (“Dynamic Pricing”). Swell Advantage’s Dynamic Pricing will fluctuate based on a number of factors, including but not limited to time of day, season, level of demand for Marina bookings and other factors that could impact applicable Charges as determined by Swell Advantage. Swell Advantage will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for the Charges incurred under your Account regardless of your actual awareness of such Charges or their amounts. Swell Advantage may, from time to time, provide users with promotional offers and discounts that may result in alternate Charges for the same or similar Services. You agree that such promotional offers and discounts, unless made available to you, shall have no bearing on your use of the Services or Charges applied to you. You may elect to cancel your request for services from a Marina at any time prior to your use of such services, in which case you may still be charged a fee pursuant to Section 5 of these Terms.

(E) Swell Advantage partners with companies (such as Stripe) for payment processing. When you make a reservation, you’re also agreeing to the payment processor’s terms of service. Swell Advantage may replace its payment processor at anytime without notifying you.

5. Cancellation Policy

Swell Advantage understands that your circumstances may change between the time of booking through the Services and your use of the Marina services.

In the event a Swell Advantage marina customer is eligible for a refund we will work with best efforts to process the refund within 72 hours of the cancellation. In some extenuating circumstances it may take longer.

6. Intellectual Property Rights

The Applications and their entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by Swell Advantage, its licensors or other providers of such material and are protected by various copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.

(A) Subject to your compliance with these Terms, Swell Advantage grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to access and use the Applications on your personal device solely in connection with your use of the Services and your access and use of any content, information and related materials that may be made available through the Services. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Applications, except as follows:

  • Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
  • You may store files that are automatically cached by your Web browser for display enhancement purposes.
  • You may print or download one copy of the Applications for your own personal, non-commercial use and not for further reproduction, publication or distribution.
  • If we provide social media features with certain content, you may take such actions as are enabled by such features.

(B) You must not:

 

 

  • Modify copies of any materials from the Applications.
  • Use any illustrations, photographs, video or audio sequences of any graphics separately from the accompanying text.
  • Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from the Applications.

You must not access or use, for any commercial purposes, any part of the Applications or any services or materials available through the Applications.

 

If you wish to make any use of material on the Applications other than that set out in this section, please address your request to info@swelladvantage.com.

If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Applications in breach of these Terms, your right to use the Applications will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Applications or any content on the Applications is transferred to you, and all rights not expressly granted are reserved by Swell Advantage. Any use of the Applications not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark and other laws.

7. Trademarks

The Swell Advantage name, the terms “Swell Advantage,” “Swell Advantage.com,” the Swell Advantage logo and all related names, logos, products and service names, designs and slogans are trademarks of Swell Advantage or its affiliates or licensors. You must not use such trademarks without the prior written permission of Swell Advantage. All other names, logos, products and service names, designs and slogans on the Applications are the trademarks of their respective owners.

8. Prohibited Uses

You may use the Applications only for lawful purposes and in accordance with these Terms. You agree not to use the Applications:

  • In any way that violates any applicable federal, state, provincial, local or international law or regulation, including, without limitation, any laws regarding export of data or software to and from the United States, Canada or other countries.
  • For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
  • To send, knowingly receive, upload, download, use or re-use any material, which does not comply with these Terms.
  • To transmit or procure the sending of, any advertising or promotional material without Our prior written consent, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation.
  • To impersonate or attempt to impersonate Swell Advantage, a Swell Advantage employee, another user or any other person or entity including, without limitation, by using e-mail addresses or user names associated with any of the foregoing.
  • To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Applications, or which, as determined by us in our sole discretion, may harm Swell Advantage or users of the Applications or expose them to liability.

Additionally, you agree not to:

 

 

  • Use the Applications in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Applications, including their ability to engage in real time activities through the Applications.
  • Use any robot, spider or other automatic device, process or means to access the Applications for any purpose, including monitoring or copying any of the material on the Applications.
  • Use any manual process to monitor or copy any of the material on the Applications or for any other unauthorized purpose without our prior written consent.
  • Use any device, software or routine that interferes with the proper working of the Applications.
  • Introduce any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
  • Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Applications, the server on which the Applications are stored, or any server, computer or database connected to the Applications.
  • Attack the Applications via denial-of-service or a distributed denial-of-service attack.
  • Otherwise attempt to interfere with the proper working of the Applications.

 

9. Third-Party Services and Content

The Services may be made available or accessed in connection with third-party services and content, including advertising, that Swell Advantage does not control. You acknowledge that different terms of service and privacy policies may apply to your use of such third-party services and content. Swell Advantage does not endorse such third party services and content and in no event shall Swell Advantage be responsible or liable for any products or services of such third parties.

10. User Contributions

The Applications may contain message boards, chat rooms, personal, employer and institutional web pages or profiles, review forums, bulletin boards and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display or transmit to other users or other persons (hereinafter, “Post”) content or materials (collectively, “User Contributions”) on or through the Applications.

All User Contributions must comply with these Terms. Any User Contribution you post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Applications, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material for any purpose or according to your account settings.

You represent and warrant that: - You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns. - All of your User Contributions do and will comply with these Terms.

You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not Swell Advantage, have full responsibility for such content, including its legality, reliability, accuracy and appropriateness. We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the Applications.

11. Monitoring and Enforcement; Termination

We have the right to: - Remove or refuse to post any User Contributions for any or no reason in our sole discretion. - Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms of Use, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Applications or the public or could create liability for Swell Advantage. - Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy. - Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Applications. - Terminate or suspend your access to all or part of the Applications for any or no reason, including without limitation any violation of these Terms.

Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Applications. YOU WAIVE AND HOLD HARMLESS SWELL ADVANTAGE AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY SWELL ADVANTAGE OR ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SWELL ADVANTAGE, SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

However, we cannot undertake the review of all material before it is posted on the Applications, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or non-performance of the activities described in this section.

12. Content Standards

These content standards apply to any and all User Contributions and use of Interactive Services. User Contributions must comply with all applicable federal, state, provincial, local and international laws and regulations in their entirety. Without limiting the foregoing, User Contributions must not:

  • Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
  • Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
  • Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.
  • Violate the legal rights, including the rights of publicity and privacy, of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms and our Privacy Policy http://www.SwellAdvantage.com/products
  • Promote any illegal activity, or advocate, promote or assist any unlawful act.
  • Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
  • Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising or give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

 

13. Reliance on Information Posted

The information presented on or through the Applications is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Applications, or by anyone who may be informed of its contents. The Applications include or may include content provided by third parties, including materials provided by other users, bloggers and third-party licensors, syndicators, aggregators and/or reporting services. All statement and opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Swell Advantage, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Swell Advantage. We are not responsible, or liable to you or any third party, for the content or accuracy of any material provided by any third parties.

14. Changes to the Applications

We may update the content on the Applications from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Applications may be out of date at any given time, and we are under no obligation to update such material.

15. Information About You and Your Visits to the Applications

All information we collect on the Applications is subject to our Privacy Policy located at http://www.SwellAdvantage.com/privacy. By using the Applications, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

16. Linking to the Applications and Social Media Features

You may link to our homepage, provided you do so in a way that is legal and does not damage or take advantage of our reputation, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part, without our express written consent.

(A) The Applications may provide certain social media features that enable you to:

  • Link from your own or certain third-party websites to certain content on the Applications, including, but not limited to Swell Advantage’s reservation forms on Marina websites.
  • Send e-mails or other communications with certain content, or links to certain content, on the Applications.
  • Cause limited portions of content on the Applications to be displayed or appear to be displayed on your own or certain third-party websites.

(B) You may use these features solely as we provide them and solely with respect to the content they are displayed with, and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:

 

 

  • Establish a link from any website that is not owned by you.
  • Cause the Applications or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other site.
  • Otherwise take any action with respect to the materials on the Applications that are inconsistent with any other provision of these Terms.

The website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in these Terms. You agree to cooperate with us in causing any unauthorized framing or linking to cease immediately. We reserve the right to withdraw linking permission without notice. We may disable all or any social media features and any links at any time without notice in our discretion.

 

17. Links from the Applications

If the Applications contain links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links to Marinas’ terms and conditions, and links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party websites linked to the Applications, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

18. Geographic Restrictions

The owner of the Applications is based in the province of Nova Scotia in Canada. We provide the Applications for use only by persons located in the United States and Canada. We make no claims that the Applications or any of its content is accessible or appropriate outside of the United States and Canada. Access to the Applications may not be legal by certain persons or in certain countries. If you access the Applications from outside the United States or Canada, you do so on your own initiative and are responsible for compliance with local laws.

19. Requirements for Marina or Other Commercial Subscribers

If you are a Marina or other commercial subscriber to the Applications, you have executed an additional agreement with Swell Advantage, (your “Contract”), which specifically states your obligations to Swell Advantage and Swell Advantage ’s obligations to you. Notwithstanding your Contract and while leaving the terms of your Contract in full force and effect, you acknowledge and agree to the following terms and conditions:

  • All info that you provide to Swell Advantage is accurate and up to date.
  • Swell Advantage, in its sole discretion, may use your name, logo and any other symbol, word, slogan or identifier associated with your Marina or other legal entity on the Applications.
  • You shall embed a Swell Advantage form or reservation link on your Marina’s website.
  • You hereby agree to allow Swell Advantage to send emails and other communications on your behalf, based on the contact information provided by you, to your Marina customers. This communication only pertains to customers who book a reservation through Swell Advantage. Swell Advantage shall have the right to retain information of your Marina customers, including but not limited to: name, email address and any other available contact information for record keeping purposes. Swell Advantage respects the privacy of your customers and hereby agrees not to reuse this information for third-party marketing purposes. Users that register with Swell Advantage shall be subject to these Terms and may be contacted in connection with Swell Advantage services and other information.
  • You agree to pay Swell Advantage’s 20% service fee for all reservations processed through Swell Advantage’s Applications. This is inclusive of all credit card transaction fees.
  • By using the Applications, you are appointing Swell Advantage as your payment agent with regard to transactions carried out through the Applications.
  • You agree to all payment terms and fees as described herein and in your Contract.
  • Swell Advantage takes no part in and bears no responsibility for any portion of the transaction between you and the boater other than facilitating payment.
  • You shall honor all reservations made by Swell Advantage users through the Applications or any other reservation that originates as a result of the Services. Further, Swell Advantage, in its sole discretion, may discontinue providing you with its Services or use of the Applications should Swell Advantage determine that you have failed to honor such reservations.
  • Your Application username, password or any additional login information, (collectively, your “Login Credentials”), which allows you access to the Applications, shall only be used by you, your employees, agents, independent contractors, or any other party who must use your Login Credentials to access your account for implementation, technical difficulty, general maintenance or any other service approved by Swell Advantage. Violation of this subsection, shall result in immediate removal from the Applications.
  • You are responsible for properly reporting and handling taxable income made as a result of your transactions through the Swell Advantage Applications.
  • You shall follow all federal, state, provincial, and local laws, rules and regulations concerning your business, as required in the jurisdiction where you are physically located or where you directly or indirectly conduct business.
  • Payment processing services for Marinas on Swell Advantage are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these Terms or continuing to operate as a Marina on Swell Advantage, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Swell Advantage enabling payment processing services through Stripe, you agree to provide Swell Advantage accurate and complete information about you and your business, and you authorize Swell Advantage to share it and transaction information related to your use of the payment processing services provided by Stripe.

Swell Advantage, in its sole discretion, reserves the right to suspend your service immediately. Further, Swell Advantage reserves the right to take any and all necessary legal actions should it determine that you, your employees, agents, independent contractors or any other party improperly uses your Login Credentials, regardless of whether the improper use resulted in commercial gain for you or the violator.

 

20. Disclaimers

THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” SWELL ADVANTAGE DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, SWELL ADVANTAGE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY GOODS OR SERVICES OBTAINED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY THIRD PARTY GOODS OR SERVICES OBTAINED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THESE DISCLAIMERS DO NOT ALTER YOUR RIGHTS AS A CONSUMER TO THE EXTENT NOT PERMITTED UNDER THE LAW IN THE JURISDICTION OF YOUR RESIDENCE.

21. Limitation of Liability

SWELL ADVANTAGE SHALL NOT BE LIABLE TO YOU FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY OR PROPERTY DAMAGE, EVEN IF SWELL ADVANTAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SWELL ADVANTAGE SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES INCURRED BY YOU ARISING OUT OF: (A) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (B) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY MARINA, EVEN IF SWELL ADVANTAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SWELL ADVANTAGE SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND SWELL ADVANTAGE ’S REASONABLE CONTROL. YOU ACKNOWLEDGE THAT MARINAS PROVIDING DOCKING OR SIMILAR SERVICES REQUESTED THROUGH SWELL ADVANTAGE MAY OFFER SERVICES THAT MAY NOT BE PROFESSIONALLY LICENSED OR PERMITTED. IN NO EVENT SHALL SWELL ADVANTAGE ’S TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED FIVE HUNDRED U.S. DOLLARS ($500). THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

22. Indemnification

You agree to defend, indemnify and hold harmless Swell Advantage, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees, including reasonable attorneys’ fees arising out of or relating to your violation of these Terms or your use of the Applications, including, but not limited to, your:

  • Use of the Services;
  • Your breach or violation of any of these Terms;
  • Swell Advantage’s use of your User Content; or
  • Your violation of the rights of any third party, including Marinas.

 

23. Governing Law and Jurisdiction

All matters relating to the Applications and these Terms and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the laws of the province of Nova Scotia without giving effect to any choice or conflict of law provision or rule (whether of the province of Nova Scotia or any other jurisdiction). Any legal suit, action or proceeding arising out of, or related to, these Terms or the Applications shall be instituted in the courts of the province of Nova Scotia, in each case located in Halifax, Nova Scotia, although we retain the right to bring any suit, action or proceeding against you for breach of these Terms in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

24. Limitation on Time to File Claims

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF THE APPLICATIONS MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

25. Waiver and Severability

No waiver by Swell Advantage of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Swell Advantage to assert a right or provision under these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.

26. Entire Agreement

The Terms, our Privacy Policy and our End User License Agreement constitute the sole and entire agreement between you and Swell Advantage with respect to the Applications and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Applications.

27. Comments and Questions

The Applications are operated by Swell Advantage, Inc.

All notices of copyright infringement claims should be sent to Swell Advantage, Attn: Iaian or iaian@swelladvantage.com or in the manner and by the means set forth herein. All other feedback, comments, requests for technical support and other communications relating to the Applications should be directed to info@swelladvantage.com.