Welcome to Nautical Commerce. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”). By signing up for an Account (as defined in Section 2) or by using any Services you are agreeing to be bound by the following terms and conditions (the “Terms”). As used in the Terms, “we”, “us”, “our” and “Nautical Commerce” means Nautical Commerce, Inc. and “”you,” ”your” and “customer” shall mean the company registered for an Account and Subscription (as defined in Section 2). Your use of the Services in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Services. 

These Terms include the provisions in this document as well as those in the Acceptable Use Policy (“AUP”) (https://www.nauticalcommerce.com/legal/aup), Privacy Policy (https://www.nauticalcommerce.com/legal/privacy), API License and Terms of Use (“API Terms”) (https://www.nauticalcommerce.com/legal/api-terms), and Data Processing Addendum (“DPA”) (https://www.nauticalcommerce.com/legal/dpa),  and any other accompanying terms and conditions of sale entered into between you and us for the sale of any Services (collectively, the “Documentation”). Your use of or participation in certain Services may also be subject to additional policies, rules and/or conditions which we inform you of prior to your use of such Services (“Additional Terms”), which are incorporated herein by reference, and you understand and agree that by using or participating in any such Services, you agree to also comply with those Additional Terms.

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1. Scope of Services

1.1 Nautical Commerce provides a marketplace commerce platform designed to support you through a range of features and tools as applicable to your Subscription.

1.2 Subject to your payment of all applicable fees, if your Subscription includes support, Nautical Commerce will provide such support for each applicable Services in accordance with the support package applicable to your Subscription.

1.3  Certain features of the Services may allow you to integrate third party applications and products into your use of the Services. Nautical Commerce is not responsible for the operation of any third-party products, applications, or services (collectively, “Third Party Services”) nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. You are solely responsible for procuring any and all rights necessary to access Third Party Services and for complying with any applicable terms or conditions thereof. Nautical Commerce does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between you and a third party provider is solely between you and such third party provider and is governed by such third party’s terms and conditions.

1.4 From time to time, Nautical Commerce may, at its sole discretion, invite you to try pre-release or beta features that are in development and not yet available to all users (“Beta Services”). These Beta Services are separate from the standard Services and may come with additional terms and conditions, which Nautical Commerce will provide prior to your use of the Beta Services.  Notwithstanding anything to the contrary in this Agreement, with respect to such Beta Services:

1. All Beta Services and related discussions and materials are considered confidential and are subject to the confidentiality provisions of this agreement. You agree not to make any public statements or disclose your participation in the Beta Services without Nautical Commerce’s prior written consent. 
2. Nautical Commerce makes no guarantees regarding the functionality of the Beta Services and may discontinue them at any time at its sole discretion. Nautical Commerce will not be liable for any harm or damage arising from or in connection with the Beta Services. 
3. The Beta Services may differ from the final version (if any) thereof released by Nautical Commerce, and Nautical Commerce may choose to modify, release, or not release a final version at its sole discretion.

2. Account Terms

2.1 To access and use the Services, you must register for a Services account (“Account”). In accordance with the Services registration and selection features offered through your Account, you will select and agree with Nautical Commerce regarding the terms of your applicable Services subscription, including without limitation the term and cost thereof and type of Services included therein  (collectively, your “Subscription”). As part of the registration process, you may be required to select a password and user name (“Nautical Commerce User ID”), and provide Nautical Commerce with certain information or data, such as your contact information. You will provide Nautical Commerce with accurate, complete, and updated registration information. You may not select as your Nautical Commerce User ID a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your Account to anyone else without Nautical Commerce’s prior written permission.Nautical Commerce reserves the right to cancel an existing Account at our sole discretion, for any reason. 

2.2 By registering for an Account, you represent and warrant that you are an individual of legal age to form a binding contract. If you are entering into this agreement on behalf of an entity, then you represent and warrant that you are authorized to bind such entity to the terms of this agreement. 

2.3 Subject to these Terms, we grant you a worldwide, nonexclusive, limited, commercial, nonsublicensable, nontransferable right and license to internally access and use the Services during the applicable Subscription and only in accordance with the applicable Documentation.

2.4 Your Subscription shall automatically renew for additional successive periods of equal duration to the initial Subscription unless terminated.

2.5 You are responsible for keeping your password secure. Nautical Commerce cannot and will not be liable for any loss or damage resulting from your failure to maintain the security of your account and password. We may request additional security measures at any time and reserve the right to modify these requirements at our discretion.

3. Your Responsibilities

3.1 You acknowledge and agree that you (and not Nautical Commerce) are the Merchant of Record for all transactions processed through your store. Any contract of sale is formed directly between you and your end customer; Nautical Commerce is not a party to these sales transactions. You assume full responsibility for compliance with all applicable laws, regulations, taxes, and fees arising from these transactions.

3.2 You are solely responsible for the creation, maintenance, and operation of your store on the Nautical Commerce platform. This includes ensuring that all listings, product descriptions, prices, fees, taxes, and any related content are accurate, complete, up-to-date, and comply with all applicable laws and regulations. You also represent and warrant that:

1. All materials, products, or services offered through your store do not infringe or misappropriate any third-party rights.
2. You will honor and fulfill all obligations and commitments to your customers, including refund, return, and warranty obligations.
3. If you are deemed a “marketplace facilitator” or similar under any jurisdiction’s laws, you will comply with any associated responsibilities, including those related to tax collection and remittance.

Nautical Commerce reserves the right (but has no obligation) to review, monitor, or remove any content or listings in your store that we determine, in our sole discretion, violate these Terms, applicable laws, or otherwise pose a risk to Nautical Commerce or the public.

3.3 Any website and marketplace you operate that utilizes the Services (collectively, “Your Site”)   may have its own visitors, customers, and end users (“End Users”). You understand and agree that (a) Your Sites and your End Users are your responsibility; (b) you are solely responsible for providing products, services and support to your End Users; (c) you are solely responsible for compliance with any laws or regulations related to Your Sites and/or your End Users, and (d) you must comply with all Nautical Commerce policies, such as our Acceptable Use Policy  (www.nauticalcommerce.com/legal/AUP). Nautical Commerce is not liable for, and will not provide you with, any legal advice regarding, Your Sites or your End Users. 

3.4 You shall not (and shall not permit any third party to), directly or indirectly: 

1. reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); 
2. modify, translate, or create derivative works based on the Services; 
3. copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services;
4. remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; 
5. use the Services to build an application or product that is competitive with any Nautical Commerce product or service; 
6. interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or 
7. bypass any measures Nautical Commerce may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services). 

3.5 You are responsible for all of your activity in connection with the Services, including but not limited to your Customer Data (as defined in Section 4).  

3.6 You are solely responsible for all aspects of transactions with your customers, including payment authorization, refunds, returns, order fulfillment, customer service, and compliance with all applicable laws and regulations. You represent and warrant that your store, all listings, and any goods or services you sell through the Services are accurate, lawful, and do not infringe any third-party rights.

3.7 You must (a) notify Nautical Commerce promptly upon becoming aware of any unauthorized use of any password or account of any of its End Users or Buyers (or any other breach of security of the Software or its infrastructure), and (b) notify Nautical Commerce promptly upon becoming aware of, and stop, any unauthorized copying, distribution or other misuse of any aspect of the Software by or through the accounts of any of its End Users or Buyers.

3.8 You are responsible for the use of the Services by any person to whom you have given access to the Services, even if you did not authorize such use.

3.9 You (a) shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Services (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Services in a manner that violates any third party intellectual property, contractual or other proprietary rights.

3.10 The Services are intended for use only in the United States and Canada. By using the Services, you represent and warrant that (a) you are located in the U.S. or Canada, or (b) your access and use of the Services are permitted under all applicable laws, including U.S. export control and sanctions laws. Nautical Commerce reserves the right to disable or terminate your access if we determine that providing the Services to you would violate applicable laws or regulations.

3.11 A violation of any of the foregoing is grounds for termination of your right to use or access the Services.  

4. Your Rights

4.1 Any data, information or other material provided, uploaded, or submitted by you to the Services in the course of using the Services or collected by us in the course of providing the Services is “Customer Data.” To the extent you own any Customer Data, you retain all rights, subject to the rights granted in these Terms. You, not Nautical Commerce, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data you provide, upload, or submit to the Services. 

4.2 You represent and warrant that you have all rights necessary (including all End Users’ consents) to provide the Customer Data to Nautical Commerce and permit Nautical Commerce to use and exercise rights in such Customer Data as contemplated hereunder, in each case without any violation of applicable law (including privacy laws) or infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy). 

4.3 Nautical Commerce shall use commercially reasonable efforts to maintain the security and integrity of the Services and the Customer Data.  Nautical Commerce is not responsible for unauthorized access to Customer Data or the unauthorized use of the Services unless such access is due to Nautical Commerce’s gross negligence or willful misconduct.  

5. Nautical Rights

5.1   From time to time, Nautical Commerce may provide updates, patches, enhancements, or fixes for the Services at no additional charge (“Updates”). These Updates will automatically become part of the Services and will be subject to these Terms. Nautical Commerce reserves the right to determine the timing and content of any Updates and is not obligated to provide any such Updates. You acknowledge that Nautical Commerce may make improvements and modifications to the Services at any time at its sole discretion.

5.2   As between the parties, Nautical Commerce retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Nautical Commerce for the purposes of this Agreement, including any copies and derivative works of the foregoing.  Any software which is distributed or otherwise provided to you hereunder (including without limitation any software included in your Subscription) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement.  No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. 

5.3   You may (but are not obligated to) provide suggestions, comments or other feedback to Nautical Commerce with respect to the Services (“Feedback”). Nautical Commerce acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind.  Notwithstanding anything else, you shall, and hereby do, grant to Nautical Commerce a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.  Nothing in this Agreement will impair Nautical Commerce’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that you may develop, produce, market, or distribute.

5.4 You acknowledge that Nautical Commerce may provide Services to your competitors, and that its employees or contractors may operate their own stores on the platform. While we maintain internal controls to protect your data, all Nautical Commerce personnel with access to confidential information are bound by confidentiality obligations and prohibited from using such information for personal gain or competitive advantage. By using the Services, you accept that other businesses—including those operated by our personnel—may compete with you.

6. Fees

6.1   The Services carry fees, as described in the Subscription terms presented to you at the time of your entering into such Subscription (the “Fees”). Please see our Services page https://guide.nauticalcommerce.com/get-started/pricing-and-plans/ for a description of the current Services. Past due Fees are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law.  You are responsible for all taxes associated with the Services (excluding taxes based on Nautical Commerce’s net income).  All Fees are non-refundable and are not subject to set-off.

6.2 Your Subscription Plan may include usage limits. If you exceed these limits, Nautical Commerce may either (a) invoice you for overage charges at our then-current rates, pro-rated from the date your usage first exceeded the limits, or (b) adjust your Subscription to a higher-tier plan that aligns with your usage. We will notify you once we become aware of any overages or plan adjustments and, where practicable, provide you an opportunity to review or reduce your usage. Because we do not always monitor usage in real time, invoicing or plan adjustments may occur after you have already exceeded the applicable limits.

6.4   Nautical Commerce reserves the right to change the fees for the Services from time to time. In the event of any fee changes, we will provide you with a 30-day advance notice before the end of your current Subscription. This notice will be given through one or more of the following methods: (a) Email: An email will be sent to the email address associated with your Account. (b) Account Notice A notice will be posted on your Account page.

6.5   Any changes to the fees will take effect at the end of your current subscription term. For customers on month-to-month subscriptions, the changes will apply starting with the next monthly billing cycle. 

6.6   Nautical Commerce shall not be liable to you or any third party for any modifications, price changes, suspension, or discontinuance of the Services (or any part thereof).

7. Payment of Fees

7.1   You must keep a valid payment method on file with Nautical Commerce. All Fees will be automatically charged to the payment method on file that you provided (“Authorized Payment Method”), and will continue to charge the Authorized Payment Method for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full.

7.2 Subscription Fees are billed in advance on a recurring 30-day cycle (each, a “Billing Date”). You must pay these fees in full at the start of each billing period. If you upgrade or downgrade your Subscription Plan mid-cycle, the applicable prorated amount may be reflected on your next Billing Date.

7.3 Usage-Based Fees or variable charges will be calculated after the relevant usage or transactions occur. We will bill you for any outstanding Additional Fees on your next Billing Date (or at other reasonable intervals at our discretion).

7.4   Any Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the Subscription originally selected, at the then-current non-promotional rate. To change or resign your Services at any time contact Nautical Commerce Support (support@nauticalcommerce.com). If you terminate the Services, you may use your subscription until the end of your then-current term, and your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.

7.5   On each Billing Date, you will be charged for all outstanding Fees that have not yet been charged. These Fees will be invoiced and a receipt shall be sent to you via the email address associated with your Account. Users have approximately two weeks to raise and resolve any billing issues related to Subscription Fees.

7.6 If we are unable to process payment using an Authorized Payment Method, we may attempt to process the payment again using any Authorized Payment Method. If we cannot successfully process the payment within 28 days of the initial attempt, we may suspend and revoke access to your Account and the Services. Your Account will be reactivated once you have paid any outstanding Fees, plus the Fees applicable to your next billing cycle. During any suspension period, you may not be able to access your Account or your storefront. If the outstanding Fees remain unpaid for 60 days following the suspension date, Nautical Commerce reserves the right to terminate your Account.

7.7 Unless otherwise indicated, all Fees and other charges are in U.S. dollars, and all payments will be in U.S. currency. If your transactions occur in another currency, Nautical Commerce may convert them to USD using a reputable third-party service or another commercially reasonable method of its choosing. You acknowledge that exchange rates vary over time and may not match any real-time or publicly posted rates. By continuing to use the Services, you accept that Nautical Commerce’s chosen exchange rate and exchange rate time applies to all billing and payouts, and release Nautical Commerce from liability related to any differences in currency conversion.

7.8   All Fees are exclusive of applicable federal, state, local, or other governmental sales, goods, and services taxes, fees, or charges now in force or enacted in the future (“Taxes”). You are responsible for all applicable Taxes arising from or related to your subscription to or purchase of Nautical Commerce’s products and services. If Nautical Commerce charges these Taxes, they are calculated based on the billing address you provide. These amounts are in addition to the Fees for the products and services and will be billed to your Authorized Payment Method.

7.9   Nautical Commerce will be entitled to recover its reasonable legal fees and other expenses (including expert witness fees and expenses on appeal) related to any efforts made by Nautical Commerce to collect overdue amounts.

7.10   Nautical Commerce may suspend or limit your access to or use of the Services if your account is more than thirty (30) days past due (“Late Payment”).

7.11 Nautical Commerce does not provide refunds, and Fees are not subject to set-off.

7.12 Failure by Nautical Commerce to charge or collect any fees when due does not release you from your obligation to pay those fees. If any fees are not invoiced or collected at the time they are incurred, you remain responsible for the full amount, and Nautical Commerce may bill you at a later date.

8. Privacy

8.1 In the event and to the extent that you are a controller or processor of Personal Data (as defined in the DPA) that is subject to certain Data Protection Laws (as defined in the DPA), and you disclose that Personal Data to Nautical Commerce as part of your Customer Data, then the Data Processing Addendum located at www.nauticalcommerce.com/legal/dpa (the “DPA”) is hereby included and incorporated into this Agreement

8.2 To the extent that the Customer Data includes any Personal Data, (i) Nautical Commerce will process, retain, use, and disclose such personal information only as necessary to provide the Services hereunder and as otherwise permitted under this Agreement, which constitutes a business purpose, (ii) Nautical Commerce agrees not to sell such personal data, to retain, use, or disclose such personal data for any commercial purpose other than the foregoing purposes, or to retain, use, or disclose such personal data outside of the scope of this Agreement. Nautical Commerce understands its obligations under applicable data protection laws and will comply with them.

9. Confidentiality

9.1   “Confidential Information” refers to any information related to a party’s business that is not publicly known. This includes, but is not limited to, business details, technical processes, formulas, software, customer lists, prospective customer lists, names, addresses, and other information about customers and potential customers, product designs, sales data, cost information (including processing fees), pricing lists, unpublished financial details, business plans, marketing data, and other proprietary information, regardless of whether it is labeled as confidential or proprietary. Nautical Commerce’s Confidential Information encompasses all non-public information you receive related to us or our Services, including details about our security programs and practices.

9.2   Each party agrees to use the other party’s Confidential Information solely as necessary to fulfill its obligations under these Terms and in accordance with any other obligations outlined in these Terms, including this Section. Both parties agree to take all reasonable measures, equivalent to those taken to protect their own proprietary information, to prevent the unauthorized duplication, disclosure, or use of any Confidential Information. This includes sharing such information only with employees, agents, and subcontractors who need access to fulfill their obligations hereunder and who are bound by confidentiality obligations at least as stringent as those contained herein. Disclosure is also permitted as required by law, regulation, or court order, provided that the receiving party gives prompt written notice to the disclosing party (if legally permitted) and makes commercially reasonable efforts to ensure the information receives confidential treatment.

9.3   Confidential Information does not include information that the receiving party can demonstrate: (A) was already in the public domain or known by the receiving party at the time of disclosure, (B) is independently developed by the receiving party without reference to or use of the disclosing party’s Confidential Information, or (C) is lawfully obtained by the receiving party from a third party without violating any confidentiality obligations.

9.4   Notwithstanding anything to the contrary, You acknowledge and agree that Nautical Commerce may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Services to you and (B) generating Aggregated De-Identified Data (as defined below), and (ii) freely use, retain and make available Aggregated De-Identified Data for Nautical Commerce’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Nautical Commerce’s products and services). “Aggregated De-Identified Data” means data submitted to, collected by, or generated by Nautical Commerce in connection with your use of the Services, but only in aggregate, de-identified form which does not identify you or your End Users (if applicable).

10. Termination

10.1 You may cancel your Account at any time by contacting Nautical Commerce Support (support@nauticalcommerce.com) and then following the specific instructions indicated to you in our response.

10.2 Without limiting any other remedies, we may suspend or terminate your Account or the Terms for any reason, without notice and at any time (unless otherwise required by law), including if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the use of the Services. Termination of the Terms will be without prejudice to any rights or obligations which arose prior to the date of termination. 

10.3 All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, confidentiality, indemnity, and limitations of liability.

10.4 On termination of the Services by either party for any reason: (a) Unless otherwise provided in the Terms, you will not be entitled to any refunds of any Fees, pro rata or otherwise; (b) any outstanding balance owed to Nautical Commerce for your use of the Services through the effective date of such termination will immediately become due and payable in full

10.5 You agree and acknowledge that your data may be irretrievably deleted if your account is ninety (90) days or more delinquent.

10.6 You are responsible for exporting your data before terminating or canceling your Account

11. Indemnification and Limitation of Liability 

11.1 EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR YOUR BREACH OF SECTION 7, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF THE GREATER OF $100 OR (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY YOU TO NAUTICAL COMMERCE HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER. WITH RESPECT TO ANY FREE TRIAL OR BETA SERVICES, NAUTICAL COMMERCE’S LIABILITIES FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO $100.

11.2 Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (i) the Customer Data or your use of the Services (in the case of Customer as Indemnitor), or (ii) the Services (in the case of Nautical Commerce as Indemnitor), infringes, violates, or misappropriates any third party intellectual property or proprietary right.  Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (x) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (y) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (z) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). 

11.3 The foregoing obligations of Nautical Commerce do not apply with respect to the Services or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Nautical Commerce (including without limitation any Customer Data), (ii) made in whole or in part in accordance to your specifications, (iii) modified after delivery by Nautical Commerce, (iv) combined with other products, processes or materials not provided by Nautical Commerce (where the alleged Losses arise from or relate to such combination), (v) where you continue allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) your use of the Services is not strictly in accordance herewith.

12. Disclaimers

12.1 EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

12.2 The Services are intended for use only in the United States and Canada. If you choose to access or use the Services outside these regions, you do so at your own risk. Nautical Commerce disclaims any responsibility for compliance with local laws or regulations, and does not guarantee functionality, performance, or support for use in any jurisdiction other than the U.S. or Canada.

13. Dispute Resolution

13.1 The Terms shall be governed by and construed in accordance with the laws of the State of New York, United States, excluding its conflicts of law rules. 

13.2 Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute or claim arising out of or related to these Terms, or breach or termination thereof, will be finally settled by binding arbitration in New York County, New York, United States pursuant to the International Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) then in effect by a single JAMS arbitrator with substantial experience in resolving complex commercial contract disputes.  Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  The arbitrator will apply New York law to the merits of any dispute or claim, without reference to rules of conflict of law, and shall have the authority to award any and all available remedies, including legal and equitable relief.  The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration agreement and without any abridgment of the powers of the arbitrator.  The arbitral proceedings and all pleadings and written evidence shall be in the English language.  Any written evidence originally in a language other than English shall be submitted in English translation accompanied by the original or true copy thereof. The prevailing party will be entitled to receive from the non-prevailing party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award.  The prevailing party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues.

13.3 If any provision of these Terms is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. 

13.4 Both you and Nautical Commerce acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of the Terms, Nautical Commerce's officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of the Terms, and that upon your acceptance of the Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as the third-party beneficiary hereof.

13.5 All disputes will be conducted solely on an individual basis, and you agree not to participate in any class or representative action.

14. General Provisions

14.1 Nautical Commerce may occasionally update or revise these Terms of Service to reflect changes in our business, the law, or for other operational reasons. If we make any material changes that affect your rights or obligations, we will provide advance notice—typically at least 30 days—through your Primary Email Address on file or by another method we deem appropriate. However, if a change is necessary to address urgent legal or regulatory issues, security concerns, or potential fraud or abuse, we may implement it immediately after providing notice.

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14.2 Unless otherwise stated in our notice, the updated Terms of Service become effective on the date they are posted or communicated to you. By continuing to use the Services after the effective date, you are agreeing to the revised Terms of Service. If you do not agree to the revised Terms of Service, you must stop using the Services.

14.3 The Terms of Service, along with any documents referenced within them, form the complete and exclusive agreement between you and Nautical Commerce, governing your use of the Services and your Account. This agreement supersedes any prior agreements or communications between you and Nautical Commerce, including but not limited to, any previous versions of these Terms of Service.

14.4 The failure of Nautical Commerce to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service, including all terms and conditions and other documents it incorporates by reference, is deemed unlawful or unenforceable by a court of competent jurisdiction, that provision will be modified and interpreted to best achieve the objectives of the original provision to the fullest extent permitted by law. The remaining provisions of these Terms of Service will continue to be in full force and effect.

14.5 All terms and conditions in these Terms of Service will apply to and benefit both parties, as well as their heirs, successors, permitted assigns, and legal representatives. Nautical Commerce may assign these Terms of Service without notifying you or obtaining your consent. However, you may not assign or transfer these Terms of Service, or any of your rights or responsibilities under them, to any third party without obtaining prior written consent from Nautical Commerce, which may be granted or denied at Nautical Commerce's sole discretion.

14.6 If any provision, or part of a provision, within these Terms of Service is found to be invalid, illegal, or unenforceable for any reason, this will not impact the validity, legality, or enforceability of the remaining provisions. The rest of the Terms of Service will remain fully effective and will be interpreted as if the invalid, illegal, or unenforceable provision, or part thereof, was never included in the Terms of Service.

14.7 The Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in New York, NY. All notices under this Terms of Service shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.

14.8 Except as otherwise provided herein, any provision of these Terms of Service may be amended or waived only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.

14.9 Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Nautical Commerce may utilize subcontractors in the performance of its obligations hereunder.

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