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End User License Agreement
PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE. THIS END USER LICENSE AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
This X Shore Americas, Inc. (“X Shore”) End User License Agreement (this “EULA”) is a binding agreement between the purchaser of the X Shore Boat (the “Buyer” or “you”) and X Shore and may be incorporated by reference from the Buyer’s Boat Purchase Agreement (defined below). Buyer has purchased an X Shore boat (the “Boat”) from X Shore or an authorized dealer in accordance with a purchase agreement or the applicable authorized dealer ordering document (the “Boat Purchase Agreement”). X Shore’s software is installed on the Boat for the purpose of monitoring, providing access to, providing services to, and delivering other functions to the Boat (the “Software”) and this EULA governs the use of such Software.
X SHORE PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS EULA AND ON THE CONDITION THAT BUYER ACCEPTS AND COMPLIES WITH THIS EULA. BUYER REPRESENTS AND WARRANTS THAT (I) BUYER IS OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF BUYER IS A LEGAL ENTITY, BUYER HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS EULA ON BEHALF OF SUCH LEGAL ENTITY AND BIND SUCH LEGAL ENTITY TO THIS EULA. IF BUYER DOES NOT AGREE TO THIS EULA, BUYER WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO BUYER AND BUYER MUST NOT ACCESS OR USE THE SOFTWARE.
Account Registration. In order to use many of X Shore’s boats (also referred to as “vessels”), related products, spare parts, and all documentation related thereto (collectively, the “Products”) and any related services (the “Services”), Buyer is required to create and maintain a personal account with X Shore (an “Account”). Account creation requires Buyer to submit certain personal information at https://xshore.com/ (the “Site”) in accordance with the Boat Purchase Agreement and the policy governing the processing of all personal data collected from you in connection with your purchase of Products or Services through the Site (the “X Shore Privacy Policy”). Buyer agrees to maintain complete, accurate, and up-to-date information in its Account. Buyer is responsible for all activity or transactions that occur under Buyer’s Account, and Buyer agrees to maintain the security and confidentiality of the Account username and password at all times. Buyer agrees not to provide or use the Account username or password with other, non-X Shore approved applications, websites, or software. Buyer agrees to ensure that other users who have been assigned access to an Account via digital means, or provided access via a physical key, keycard, or other access device related to your Products and Services are aware of, and agree to this EULA.
General License
By receiving and/or using the Software, Buyer agrees that this EULA is a legally binding and valid contract, and Buyer agrees to be bound by this EULA. Buyer agrees to abide by the intellectual property laws and all terms and conditions of this EULA.
Subject to and conditional upon Buyer’s strict compliance with this EULA and any other written agreement between the Buyer and X Shore, X Shore grants Buyer a limited, non-exclusive, perpetual, transferable (subject to Section 2(c) below), non-sublicensable, and worldwide license to use the Software in accordance with this EULA (the “License”), solely in object code form and only in connection with the use of the Boat. X Shore does not transfer the title of the Software to you; the License granted to you is not a sale.
For subsequent owners, X Shore shall transfer the EULA to the new owner upon X Shore’s receipt of proof of sale. Subsequent owners shall request a “transfer of EULA ownership” through the X Shore service department by sending a request to support@xshore.com. X Shore reserves the right to refuse transfer if sufficient evidence of ownership is not provided or if the original owner is unable or unwilling to endorse the transfer.
The term “Software” includes any updates, upgrades, derivative works, and new versions of the Software (collectively, “Upgrades”). This EULA will apply to all Upgrades unless such Upgrades are accompanied by and provided under a separate license agreement.
Use of the Software
Buyer’s license to use the Software is limited to use on the Boat purchased by Buyer from X Shore or an X Shore authorized reseller. The Software is integrated into the multifunction display and the electronic control unit located on the Boat.
Except as otherwise expressly provided in this EULA, Buyer may solely use the Software with the Boat; only for its intended purpose; and in accordance with applicable laws, this EULA, the Boat Purchase Agreement, and other instructions and terms stated in the documentation relating to the Software, the Boat, or as otherwise provided by X Shore.
Except as otherwise expressly provided in this EULA, Buyer may not:
use the Software in a way that does not comply with applicable laws or for any unlawful purpose;
use the Software in a way that circumvents any contractual usage limits or other limitations relating to the use of the Software;
use, distribute, share, copy, sub-license, or otherwise transfer the Software, in whole or in part;
alter, develop, reverse engineer, decompile, disassemble, or make additions to the Software without the express written permission of X Shore, which X Shore may grant at X Shore’s sole discretion;
breach, circumvent, remove, or affect the technique or security systems used by X Shore to protect the Software or the content of the Software;
act in a way that may cause the Software to be disabled, overloaded, deteriorated, or harmed, or in any other way that may cause X Shore or the Software any damage; nor
access information that is not publicly available or intended for the public, but that is included in the Software or in any third party system connected to the Software.
Buyer shall contact X Shore as soon as possible, and in no event later than 48 hours, after becoming aware of any actual or suspected unauthorized use of the Software.
If Buyer uses the Software in breach of this EULA, or an action by the Buyer causes X Shore or the Software any harm, X Shore is entitled to immediately suspend or terminate Buyer’s license to use the Software without notice and without compensation to the Buyer.
Buyer will indemnify, hold harmless, and defend X Shore, its employees, agents, and distributors against any and all claims, proceedings, demands, and costs resulting from or in any way connected with Buyer’s use of the Software.
Fees
The Software and related connectivity fees are included with the purchase of a Boat for 1 year after sale to the first retail Buyer; thereafter, X Shore reserves the right to charge Buyer a license fee and/or connectivity fees. X Shore shall notify Buyer in advance at such time as Buyer will charge for the Software and/or related connectivity fees and Buyer will have the option as to whether to continue use of the Software thereafter.
Access to the Software and Boat
By accepting the terms and conditions of this EULA, Buyer accepts that X Shore may at any time, in its sole discretion, and for the purpose of performing its obligations under this EULA, access and monitor the Boat on which the Software is installed. X Shore may also access, monitor, and update the Software, including updating over-the-air (“OTA”).
Any personal data processed by X Shore in connection with this EULA shall be subject to the X Shore Privacy Policy.
Maintenance and Support
X Shore may provide Buyer with the following:
assistance to correct errors or defects (collectively “Errors”) in the Software or Upgrades;
Upgrades of the Software which will be provided at such times as determined by X Shore in its own discretion; and
advice on and assistance to use the Software for a particular application, including using the Software’s user interfaces.
X Shore will provide maintenance and support services during X Shore’s regular business hours from 9 AM to 5 PM Eastern Standard Time, weekends and X Shore holidays observed by X Shore are excepted.
X Shore shall not be obliged to provide Buyer with Upgrades.
Error Correction
Although X Shore will work to correct or circumvent Errors in the Software or Upgrades within such timeframe as may be reasonable considering the Error and all circumstances at hand, X Shore does not warrant that X Shore will be able to correct or circumvent an Error, or that an Error will be corrected within a certain period of time.
In the event of Error in the Software or Upgrades provided hereunder, X Shore shall, as Buyer’s sole and exclusive remedy, have the right to (i) correct the Error, or (ii) provide a means to circumvent such Error, as determined by X Shore in its sole discretion.
The right granted to the Buyer under Section 7(b) is subject to Buyer notifying X Shore in writing no later than sixty (60) days after the Buyer became aware, or should have become aware, of the Error. After such period, the Buyer’s right to make any claim under this EULA shall be forfeited.
Disclaimer of Warranty. BUYER ACKNOWLEDGES THAT THE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE.” EXCEPT AS EXPRESSLY STATED IN THIS EULA, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THIS SOFTWARE, AND ALL STATUTORY, EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE DISCLAIMED AND EXCLUDED. IN THE EVENT THAT THESE DISCLAIMERS ARE HELD TO BE LEGALLY INVALID, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF INFORMATION, BUSINESS INTERRUPTION, LOSS OF VALUE OF THE BOAT, LOSS OF USE, PECUNIARY LOSS, OUT-OF-POCKET EXPENSES FOR SUBSTITUTE TRANSPORTATION, OR ANY OTHER LOSS OR DAMAGES) ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS CONTRACT OR ANY LIMITED REMEDY HEREUNDER. IN NO EVENT WILL SELLER’S LIABILITY FOR ANY CLAIM, WHETHER SOUNDING IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF (A) AMOUNTS PAID BY BUYER TO LICENSE THE SOFTWARE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM, OR (B) US $100.00. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SUCH EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO BUYER.
Reservation of Rights. X Shore reserves all rights not expressly granted to Buyer in this EULA.
Intellectual Property Rights. Buyer acknowledges and accepts that, as between Buyer and X Shore, X Shore is the sole and exclusive owner of the Software (including any and all Upgrades and documentation) and that X Shore and/or its third party licensors (if applicable) own all rights, including intellectual property rights (such as trademarks, copyrights, trade secrets, and patents), embodied in the Software and documentation). No intellectual property rights to the Software, Upgrades, or documentation shall transfer to the Buyer or any third party.
Governing Law and Jurisdiction. All matters arising out of or relating to this EULA are governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware. The parties submit to the exclusive jurisdiction of the State and Federal courts of Dade County, Florida, in connection with any proceeding or dispute arising in connection herewith.
Dispute Resolution and Binding Arbitration
YOU AND X SHORE AMERICAS, INC. ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN BUYER AND X SHORE ARISING FROM OR RELATING IN ANY WAY TO THIS EULA WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section 12. (The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section. The arbitration will occur in the AAA-ICDR Miami Regional Office.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the EULA is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
If you prevail on any claim that affords the prevailing party attorneys’ fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law.
You may elect to pursue your claim in small-claims court rather than arbitration if you provide us with written notice of your intention do so within 60 days of your purchase. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy.
You agree to an arbitration on an individual basis. In any dispute, NEITHER BUYER NOR X SHORE AMERICAS, INC. WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER, OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
Amendment; Modification; Waiver. No amendment or modification to this EULA is effective unless it is in writing and signed by both parties. No waiver of any right by any party is effective unless explicitly set forth in writing and signed by such party. No failure to exercise, or delay in exercising, any right or remedy arising from this EULA operates or may be construed as a waiver thereof. No single or partial exercise of any right or remedy under this EULA precludes any other or further exercise thereof or the exercise of any other right or remedy.
Suspension. X Shore may suspend Buyer’s use of the Software at any time if X Shore reasonably believes that any event has occurred that would justify X Shore’s termination of this EULA. X Shore will use reasonable efforts to inform Buyer of any suspension and the reason(s) for the suspension but is not required to provide notice before the suspension or within any specific timeframe.
Termination. The term of this EULA will begin with Buyer’s receipt of the Boat and will terminate upon the earlier to occur of the following: Buyer discontinues use of or sells the Boat; X Shore otherwise lawfully terminates this EULA; Buyer fails to strictly comply with the terms and conditions set forth herein; or X Shore notifies Buyer that it will charge fees for the Software and/or connectivity costs and Buyer declines to pay such fees. Upon termination of the license granted herein for any reason, Buyer shall immediately cease use of the Software. The financial obligations incurred by Buyer in connection with this EULA and any other written agreements (including, but not limited to, the Boat Purchase Agreement) with X Shore shall survive the termination of this EULA.
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