Mobile Marina TERMS AND CONDITIONS OF SERVICE

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THE FOLLOWING TERMS AND CONDITIONS (REFERRED TO HEREIN AS THE “AGREEMENT”) SHALL GOVERN THE PROVISION OF FUEL AND RELATED SERVICES BY TALLEY, INC., D/B/A Mobile Marina (“Mobile Marina”) TO YOU (REFERRED TO IN THIS AGREEMENT AS THE “CUSTOMER”).  BY ORDERING FUEL THROUGH THE Mobile Marina Mobile APP (THE “APP”), or WEBSITE (THE “WEBSITE”), YOU AGREE TO ALL OF THE FOLLOWING TERMS.  YOU ARE URGED TO READ THEM CAREFULLY BEFORE ACCEPTING THEM AND BEFORE ORDERING FUEL OR SERVICE FROM Mobile Marina.

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R E C I T A L S:

1. Mobile Marina is in the business of providing watercraft fueling and related services, including delivery of fuel to watercraft on site at marinas, homes, and other places of public and private moorage.

2. Customer is the owner of the watercraft (the “Vessel”) identified by Customer in the user registration interface on the APP or Website (the “Registration Page”). Customer wishes to engage Mobile Marina to provide fueling services for the Vessel. Mobile Marina is willing to provide such services, strictly subject to the terms and conditions set forth below.

 

A G R E E M E N T:

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NOW, THEREFORE, for good and valuable information, Mobile Marina and Customer agree as follows:

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1. Engagement. Customer hereby engages Mobile Marina to provide fuel to the Vessel in accordance with the terms of this Agreement. In exchange for Mobile Marina’s delivery of fuel, Customer agrees to pay for all fuel and otherwise to satisfy its obligations as provided below.  Pricing. Customer agrees to pay Mobile Marina the price-per-gallon of fuel specified on the APP or Website on the date of delivery. Due to the constantly fluctuating price of fuel, pricing is subject to change at any time, and Mobile Marina’s prices shall be periodically adjusted in the discretion of Mobile Marina based upon prices charged by marinas and marine fuel suppliers in the vicinity of the Vessel. It shall be the responsibility of Customer to verify pricing prior to ordering fuel; and by ordering fuel through the APP or Website, Customer expressly approves the price stated on the APP or Website on the date of delivery. Each invoice provided by Mobile Marina shall specify the volume of fuel delivered and the per-gallon price charged.   Payment. Customer hereby authorizes Mobile Marina to charge the Customer’s credit card identified by Customer on the Registration Page for all fuel and services provided pursuant to this Agreement. Customer shall not suspend or terminate the identified credit card, or stop payment on any order, without first making alternate payment arrangements. Customer may change credit cards by updating the Registration Page, but shall be solely responsible for assuring that a valid credit card is identified on the APP or Website at all times, and Customer agrees to take all action reasonably necessary to assure that its credit card issuer will provide payment as required by this Agreement.   Minimum Fees and Late Payment. Notwithstanding the actual amount of fuel delivered, Customer shall pay Mobile Marina a minimum fee of $40.00 for each delivery. If Customer fails to pay any amount required under this Agreement when due (including because of the denial of payment by any credit card issuer), then in addition to the invoice amount, Customer shall pay Mobile Marina a late payment fee of ten percent (10%) of the invoice amount, on demand. Additionally, all unpaid amounts shall bear interest at the rate of twelve percent (12%) per annum from the original payment date until actually paid in full. Customer authorizes Mobile Marina to charge customer’s credit card for all such fees and interest.

2. Information. Customer warrants and agrees for the benefit of Mobile Marina that (a) all of the information contained on the Registration Page is true and accurate as of the date of this Agreement and as of the date of each fuel delivery, and (b) Customer shall promptly notify Mobile Marina in writing in the event any of such information changes or becomes outdated, either by providing written notice to Mobile Marina or by correcting information on the APP or Website Registration Page. Customer shall be solely responsible for all costs, damages, and delays resulting from the inaccuracy of any information provided by Customer to Mobile Marina. Mobile Marina agrees to take reasonable measures to protect the privacy of Customer’s information in accordance with the privacy policy posted on the APP or Website. Customer also consents to communications from Mobile Marina regarding service delivery.

   1. Mobile Marina responds to incoming texts from our customers only when they are received. All customers have signed up via an account or are actively signing up for an account. Mobile phone, email and other contact information is used only for the purposes customers consent to when sharing it with Mobile Marina.

3. Access to Vessel; Security. Customer hereby agrees to take all action necessary to provide Mobile Marina full and unrestricted access to the Vessel (including any adjacent real property or dock) for purposes of providing the services contemplated by this Agreement. Customer shall be solely responsible for the security of the Vessel. Mobile Marina shall follow reasonable security precautions specified by Customer on the Registration Page (for example, closing any access gate or returning a key to a specified location), but shall not under any circumstance be responsible for any theft, loss, or damage of any nature unless caused by the gross negligence or willful misconduct of Mobile Marina. Any claim by Customer of damage to the Vessel, any dock, or other property of Customer shall be provided in writing to Mobile Marina at the address set forth below, within seventy-two (72) hours after the occurrence of the event alleged to have caused the damage, or shall be conclusively and permanently waived and relinquished. The parties acknowledge that the foregoing time restriction is reasonable in light of the process for delivery of fuel and the access of other persons to the Vessel and surrounding areas, and was specifically negotiated.

4. Fueling and Scheduling. To receive fueling, the customer must be onsite during the fueling of their vessel. Insurance will not provide coverage for any damages, losses, or liabilities incurred if the customer is not onsite at the time of service. Mobile Marina shall provide either periodic fueling or on-demand fueling, as indicated on the Registration Page. If periodic fueling is specified, Mobile Marina will fill the tank(s) of the Vessel on or about the dates, or on roughly the frequency, indicated on the Registration Page. If on-demand fueling is specified, Customer shall notify Mobile Marina of its fuel requirement at least 48 hours in advance. Unless a specific quantity of fuel is specified by Customer, Mobile Marina shall fill the Vessel tank(s) on each delivery. Customer acknowledges that timing of deliveries is a function of Mobile Marina’s other commitments, fuel availability, and other factors beyond the control of Mobile Marina; that delivery dates are estimates only; and that under no circumstances shall Mobile Marina be responsible or liable to Customer for any delay in delivery. Mobile Marina shall suspend delivery on the first to occur of (a) instruction from Customer, either in writing or by changing the Registration Page, or (b) Mobile Marina’s determination that the annual boating season in the vicinity of the Vessel has ended, which determination shall be based upon the number of Mobile Marina customers discontinuing service and other factors. Either party may terminate this Agreement at any time upon written notice to the other, but no termination shall relieve Customer of its obligation to pay for all fuel and services provided prior to the effective date of termination.

5. Warranty and Limitation of Liability. Mobile Marina warrants solely that it shall use reasonable efforts, consistent with industry practice, to provide fuel in a timely and competent manner, in accordance with instructions provided by Customer and approved by Mobile Marina. THE FOREGOING WARRANTY IS PROVIDED IN LIEU OF, AND NOT IN ADDITION TO, ANY OTHER WARRANTY, EXPRESS OR IMPLIED, OF ANY NATURE OR DESCRIPTION WHATSOEVER, INCLUDING WITHOUT LIMITATION (A) ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) ANY WARRANTY OF THE QUALITY OF FUEL DELIVERED (WHICH IS PURCHASED FROM THIRD PARTIES, AND OVER WHICH Mobile Marina HAS NO QUALITY CONTROL), (C) ANY WARRANTY AS TO CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE BY OR THROUGH Mobile Marina, ALL OF WHICH ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS, UNLESS OTHERWISE SPECIFIED BY Mobile Marina IN WRITING, OR (D) ANY WARRANTY THAT Mobile Marina'S SERVERS OR ELECTRONIC COMMUNICATIONS, INCLUDING THOSE SENT FROM AMAZON.COM, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

 

UNDER NO CIRCUMSTANCES SHALL Mobile Marina BE RESPONSIBLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES, REGARDLESS OF CAUSE OR FORESEEABILITY.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL Mobile Marina BE LIABLE TO CUSTOMER FOR DAMAGES IN EXCESS OF THREE (3) TIMES THE TOTAL AMOUNT PAID BY CUSTOMER TO Mobile Marina IN THE ONE-YEAR PERIOD PRIOR TO THE DATE OF THE DAMAGE.  CUSTOMER ACKNOWLEDGES AND AGREES THAT THE FOREGOING LIMITATIONS WERE SPECIFICALLY NEGOTIATED AND KNOWINGLY ACCEPTED, AND SHALL APPLY TO ALL CLAIMS AND LIABILITIES OF ANY NATURE, INCLUDING WITHOUT LIMITATION CLAIMS FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY, AND NEGLIGENCE.   EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, CUSTOMER ACKNOWLEDGES AND AGREES THAT ITS USE OF Mobile Marina SERVICES IS AT CUSTOMER’S SOLE RISK.

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1. Dispute Resolution. If any dispute arises under this Agreement that cannot be settled informally by the parties (other than a claim by Mobile Marina for payment by Customer, which may be pursued in arbitration or in any court of competent jurisdiction at the sole option of Mobile Marina), they shall submit the dispute to an arbitrator selected as provided in this Section. The arbitration shall be conducted in accordance with the Rules of Practice & Procedure for Arbitration of Judicial Dispute Resolution in Seattle, Washington (“JDR”) or St. Petersburg, FL in effect when the arbitration begins and shall be conducted by a single arbitrator experienced in the matters at issue and selected by the parties (or, failing agreement as to an arbitrator, then an arbitrator appointed by JDR from its panel). The substantially prevailing party at any such arbitration shall have the right to recover from the other party its reasonable expenses and attorneys’ fees incurred at the arbitration and in any effort to have the award enforced. The judgment or award rendered by the arbitrator may be entered in any court having competent jurisdiction in accordance with RCW Chapter 7.04. The arbitration shall be held in Seattle, Washington or St. Petersburg, Florida based on the location of the operation.

2. Scope of Agreement. The entire agreement among the parties with respect to the services to be provided to Customer consists of this Agreement; the policies (including pricing policies and policies related to use of Amazon.com) posted on the APP or Website, which are incorporated herein by this reference and are subject to modification from time to time without notice; and the contents of the Registration Page if and to the extent accepted by Mobile Marina. This Agreement may not be otherwise amended, nor may any of its terms be waived, except in a written instrument signed by Customer and Mobile Marina.

3. Miscellaneous. This Agreement shall be governed by the laws of the state of Washington and Florida, without regard to its conflicts of laws rules. The substantially prevailing party in any action to interpret or enforce this Agreement shall be entitled to recover its costs and attorneys’ fees from the other party. If any term of this Agreement shall be found invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining term. This Agreement shall bind and inure to the benefit of the parties and their respective successors and assigns. All notices required by this Agreement shall be provided by hand delivery, overnight courier, electronic mail (if an address is provided below or on the Registration Page), or through any communication portal established on the APP or Website; and shall be considered effective on the date of delivery.

DATED effective the date on which Customer has first clicked “Register” on the APP or Website.