Service Provider Agreement
Last updated: April 5, 2020
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Service Provider agrees to the following:
- “Customer” or “Client”mean a person or organization that purchases Services from Service Provider through the Dupeafish Website.
- “Dupeafish Website”, or “Website”mean any Website owned by Dupeafish including but not limited to the website which has the URL Dupeafish.com, and other social media applications including Dupeafish’s Instagram account.
- “Listing” means the offer for Services that Service Provider may create on the Dupeafish Website.
- “Services” means those services or property listings offered to users by Service Provider through the Dupeafish Website, including but not limited to guiding services for fishing trips and properties for rent.
- “Service Provider”, or “you”means any registered user of Dupeafish’s Website that publishes Listings for Services or publishes any other related information to Dupeafish’s Website.
Service Provider Relationship with Dupeafish. This Agreement sets forth the Terms and Conditions of Service Provider’s use of Dupeafish’s products, software, services and Website(s). Dupeafish means Dupeafish Inc, d/b/a Dupeafish and Dupeafish.com. (Dupeafish and Service Provider are referred to herein each as a “Party,” and collectively as the “Parties.”) If Service Provider does not agree to all of the terms, Service Provider must not use Dupeafish’s Services. Dupeafish reserves the right to deny use of its Services to anyone at any time for any reason. Failure to comply with the Terms may result in denial of access to Dupeafish’s Services and cancellation of Service Provider’s Dupeafish account.
Acceptance. Use of the Dupeafish Website constitutes acceptance of this Agreement and the terms contained herein. Service Provider accepts the Terms and Conditions of this Agreement by: (i) clicking to accept or agree to the Terms and Conditions, where this option is made available by Dupeafish in the user interface for any services available on the Dupeafish Website; or, (ii) by actually using the Website to post Service Provider’s Services or any Listing.
Website Uptime and Display of Service Provider-Generated Content.
Uptime. Dupeafish will use commercially reasonable efforts to ensure that interfaces to Service Provider and Client access to Dupeafish Services are available without interruption, except for any scheduled down time needed to maintain the effective operation of the Dupeafish Website or Websites and when service interruptions are caused by conditions outside of Dupeafish’s control. Dupeafish in no way guarantees that Services will be available without interruption.
Content. Dupeafish is not responsible for any inaccuracy or incompleteness in the information provided by Service Provider including the information included in the Listing (the “Content”). It is the Service Provider’s obligation to ensure the accuracy of all Content. If Service Provider discovers that Listing details are inaccurate or incorrect, it is the Service Provider’s sole responsibility to correct the information in the Service Provider account interface or contact a Dupeafish representative to resolve any such error.
We may, without notice to you, suspend or cancel your listing at any time without receiving notice from you or giving notice to you if we suspect, in our sole discretion, that your account with us or your email account is being used in an unauthorized or fraudulent manner.
Posting any content that Dupeafish deems threatening, defamatory, infringing, unlawful, abusive, obscene, vulgar, indecent, inflammatory, sexually explicit, pornographic, profane, libelous, harassing, or otherwise objectionable is prohibited. Service Provider also agree to not post content that violates any third-party rights, including any Intellectual Property Rights, rights of publicity and privacy. Dupeafish reserves the right to remove Content at its sole discretion.
License. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged. By listing and posting Content you grant Dupeafish an irrevocable, sub-licensable, transferable, perpetual, non-exclusive, royalty-free, worldwide license to use, duplicate, modify, publish, list information regarding, alter, translate, distribute, publicly perform, publicly display, and make derivative works of, all Content and your name, voice, and/or likeness as contained in your Content, in whole or in part, and in any form, media or technology now known or developed in the future for use in Dupeafish’s (and its successors’ and affiliates’) business, including on the any Dupeafish Website. By listing and posting Content Service Provider waive any right to royalties or other compensation arising or related to the use of Service Provider Content. There is no time limit on the validity of the release nor is there any geographic limitation on where your Content may be distributed. Service Provider acknowledge that Service Provider have completely read and fully understand the release and agree to be bound thereby and that agreement shall be binding upon Service Provider and Service Provider heirs, legal representatives and assignees.
Service Provider Obligations
Registration. Prior to using Services, Service Provider is required to register on the Dupeafish Website and perform all actions necessary to comply with the Dupeafish Website registration requirements and the Terms.
Responsibility for applicable laws, rules and regulations. Service Providers is responsible for, and agrees to abide by, all laws, rules and regulations applicable to their use of the Website, their use of any tool, service or product offered on the Website, and any transaction they enter into in connection with their use of the Website.
Service Providers is responsible for and agrees to abide by all laws, rules and regulations applicable to the Services offered by Service Provider, including but not limited to, (i) advertisement of boats, fishing lodges and other guiding services and (ii) the conduct of Service Provider’s business including any business relating to guiding services, charter business. Service Provider is responsible for all taxes, permits or license requirements, inspection and safety compliance, relating to its Services. Service Provider is responsible for any verification of Client’s identification and travel documentation, as applicable.
It is the Service Provider’s responsibility to meet all local regulations and licensing to act as a charter operator who takes paying passengers fishing, if applicable.
As a Service Provider, you may create a Listing relating to the Services offered by you. To create one, you will be asked a variety of questions. Service Provider acknowledges and agrees that it alone are responsible for any and all Content posted related to any Listing. Accordingly, Service Provider represents and warrants that any Services that posted and the booking of, or a Customer’s experience with a trip that will not breach any agreements Service Provider has entered into with any third parties, and will be in compliance with all applicable laws (such as maritime laws and laws governing boats, bodies of water, etc.), tax requirements, intellectual property laws, and rules and regulations that may apply to any Listing (including having all required permits, licenses, and registrations). Dupeafish assumes no responsibility for a Service Provider’s compliance with any agreements with or duties to third parties, applicable laws, rules, and regulations. Dupeafish reserves the right, at any time and without prior notice, to remove or disable access to any Service Provider Listing for any reason, including ones that Dupeafish, in its sole discretion, considers to be objectionable for any reason, in violation of this Agreement or Dupeafish’s then-current policies, or that are otherwise harmful to the Website, Dupeafish, or its Customers.
As a Service Provider, you understand and agree that Dupeafish does not act as an insurer or as your contracting agent. If a Customer requests a booking for your Listing, any agreement you enter into with such Customer is between Service Provider and the Customer and Dupeafish is not a party to it.
Dupeafish recommends that Service Providers obtain insurance for their trips. Please review any insurance policy that you may have for your trip carefully and ensure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, without limitation, whether or not your insurance policy will cover the actions or inactions of Customers while on the trip.
Dupeafish is not liable for any mistakes and damages that occur or may occur if information or documents provided by the Service Provider or by Customer are false.
Fees. In consideration for the services provided by Dupeafish through its Website, Service Provider will pay to Dupeafish a non-refundable service fee of 15% of the Total Package Price (the “Fee”). The “Total Package Price” is the total of any security deposit and full payment by Customer for the Services, whenever due. The Fee will be automatically deducted from any payments made by Clients to the Service Providers.
Dupeafish can change the Fee at any time upon written notice to the Service Provider, however, the original Fee that appeared before the change was made will apply to Services that were made prior to the change.
Service Provider agrees that the Fee shall be due and payable to Dupeafish for any Customer who initially reserves Services through the Website, whether or not such Customer completes such payment through the Website. Service Provider agree that you will not attempt to book trips with Customers directly or through any other means other than the Website, if such Customer has initially identified the Services on the Website.
Client-Service Provider Communications. Service Provider agree that, with respect to other Service Providers’ or Clients’ personal information that you obtain directly or indirectly from or through the Website or through any Website-related communication, transaction or software, we have granted to Service Provider a license to use such information only for: (a) Website-related communications that are not unsolicited commercial messages, (b) using services offered through the Website, and (c) inquiring about or otherwise facilitating a financial transaction between you and the other Service Provider or Client related to the purpose of the Website (such as inquiring about or booking an on-line fishing trip and transacting payment). Any other purpose will require express permission from the Client. Service Provider may not use any such information for any unlawful purpose or with any unlawful intent. If it is discovered that a Service Provider is using customer information obtained through Dupeafish to then book the customer directly and avoid paying Dupeafish commission, this will result in termination of the Service Provider’s account.
No Spam. We do not tolerate spam or unsolicited commercial electronic communications of any kind. Therefore, without limiting the foregoing, you are not licensed to add a Service Provider or Client, to your mailing list (e-mail or physical mail) without the Service Provider’s or Client’s express consent. Service Provider may not use any tool or service on the Website to send spam or unsolicited commercial electronic communications of any kind or in any other way that would violate these Terms. Service Provider are responsible for all content you provide to the Website or through any tool or service provided on the Website and for your use of any personal information of Clients you obtain through the Website or otherwise in connection with your participation in the Services.
Content and Layout
The Listing and all Content and copy edits submitted by Service Providers are subject to review and approval at Dupeafish’s sole discretion. Dupeafish reserve the right to refuse to publish any Content that we determine, in our sole discretion, does not comply with the Terms or is otherwise unacceptable to us. However, Dupeafish assumes no duty to review Content and we shall not have any liability for any loss or damage resulting from the design or positioning of the copy, properties, Content and/or photographs or any change made to any Content, photograph or copy submitted by any Service Provider. All Content must meet these Terms. We reserve the right to edit Content submitted to comply with our Content guidelines or formatting requirements.
Service Providers are responsible for reviewing and ensuring that any Content displayed on the Website appears as the Service Provider intended.
Dupeafish does not accept any references to the Service Provider’s personal website or contact details and reserves the right to remove any such references. In the case of infringement of this policy, Dupeafish reserves the right to block Service Provider’s use of the site.
Dupeafish does not endorse any Service Provider, Customer, manufacturers or listing. Although Service Providers and Customers are required by this Agreement to provide accurate information, Dupeafish does not make any representations about, confirm, or endorse any Service Provider, Customer, or any Service Provider’s or Customer’s purported identity or background.
Indemnification and Limitation of Liability
Indemnification by Dupeafish.
Indemnification. Dupeafish agrees to fully indemnify, defend and hold harmless Service Provider and its officers, directors, employees, representatives and agents (collectively, “Service Provider Indemnified Parties”) from and against any and all liabilities, losses, judgments, damages or expenses, including but not limited to reasonable attorney’s fees and expenses (collectively, “Losses”), incurred by any Service Provider Indemnified Party arising out of any third party claim, proceeding or suit (each, “Claim”) that alleges that the use of the Dupeafish Website by the Service Provider Indemnified Parties infringes or misappropriates any United States, patent, copyright, trademark or other proprietary rights of such third party, if (a) the applicable Service Provider Indemnified Party gives Dupeafish prompt written notice of the Claim; (b) Dupeafish has full and complete control over the defense and settlement of the Claim; (c) the applicable Service Provider Indemnified Party provides assistance in connection with the defense and settlement of the Claim as Dupeafish may reasonably request; and (d) the applicable Service Provider Indemnified Party complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing materials).
Service Provider agrees to fully indemnify, defend and hold harmless Dupeafish and its officers, directors, members, employees, representatives, agents, and their respective successors and assigns (collectively, “Dupeafish Indemnified Parties”), from and against any and all Losses incurred by any Dupeafish Indemnified Party arising out of any Claim relating to or arising out of (a) any of the Services including the services relating to guiding or services relating to the provision of lodging to a Customer by Service Provider; (b) Service Provider’s breach of any obligation, warranty or representation in this Agreement; (c) Service Provider’s intentional acts or omissions or any form of negligence or other similar wrongdoing; (d) the Content, (e) any infringement or misappropriation of intellectual property or other rights by the Content; or (f) Service Provider’s failure to comply with any applicable laws in the provision of Services. Dupeafish must give Service Provider (i) prompt written notice of the Claim; (ii) full and complete control over the defense and settlement of the Claim; provided, however, that Service Provider shall not settle any Claim that admits liability or places any obligation on a Dupeafish Indemnified Party without the prior written consent of Dupeafish. Dupeafish agrees to provide assistance in connection with the defense and settlement of the Claim as Service Provider may reasonably request.
Neither Dupeafish nor Service Provider will be liable for any form of equitable or implied indemnification to the other with respect to this Agreement, the subject matter of this Agreement or otherwise.
WARRANTIES AND DISCLAIMERS
Each party represents and warrants that it has power and authority to enter this Agreement, the person or entity executing this Agreement has the power and authority to bind the party to this Agreement, and its entry into and performance of this Agreement will not breach any contractual obligations with third parties.
NOTWITHSTANDING ANY CONTRARY PROVISION, AND TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW:
THE DUPEAFISH PLATFORM AND ALL COMPONENTS THEREOF, ARE BEING PROVIDED TO SERVICE PROVIDER AND ANY RELATED PERSON OR ENTITY “AS IS” AND WITH ALL FAULTS. ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED OR STATUTORY) OF DUPEAFISH OR ANY AFFILIATE ARE HEREBY EXCLUDED AND DISCLAIMED, INCLUDING BUT NOT LIMITED TO (a) ANY AND ALL IMPLIED OR OTHER WARRANTIES OF TITLE OR NON-INFRINGEMENT, (b) ANY AND ALL IMPLIED OR OTHER WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, USEFULNESS OR SUITABILITY, AND (c) ANY REPRESENTATION OR WARRANTY THAT THE DUPEAFISH PLATFORM OR ANY PART THEREOF WILL BE SECURE, RELIABLE, TIMELY, UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE; OR THE RESULTS THAT MAY BE OBTAINED FROM ANY OF THE FOREGOING.
ANY ACCESS TO OR USE OF THE DUPEAFISH PLATFORM SHALL BE AT SERVICE PROVIDER’S SOLE RISK AND SERVICE PROVIDER IS RESPONSIBLE FOR EVALUATING AND BEARING ALL RISKS ASSOCIATED WITH SUCH ACCESS AND USE.
LIMITATIONS OF LIABILITY. NOTWITHSTANDING ANY CONTRARY PROVISION OR ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY OF ANY KIND, TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, DUPEAFISH WILL NOT BE LIABLE TO SERVICE PROVIDER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSS OF PROFIT, REVENUE, DATA, BUSINESS OR USE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF THE SUBJECT MATTER OF THIS AGREEMENT. IN NO EVENT WILL DUPEAFISH’S CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING ANY RELATED CLAIMS, ACTIONS OR CAUSES OF ACTION AND ANY CLAIMS FOR INDEMNIFICATION, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT OF FEES PAID TO DUPEAFISH FOR THE SERVICE PROVIDER SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE EVENT FIRST GIVING RISE TO THE RELEVANT CLAIM, ACTION OR CAUSE OF ACTION. SERVICE PROVIDER UNDERSTANDS AND AGREES THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND ARE REASONABLE AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THE FOREGOING LIMITATIONS SHALL NOT BE INCREASED BY MULTIPLE CLAIMS, ACTIONS OR CAUSES OF ACTION WHETHER SIMILAR OR NOT.
INSURANCE. Service Provider agrees to maintain in full force and effect adequate liability insurance coverage in connection with the Services at all times during the Term and for a period of two (2) years following the end of the Term. Service Provider agrees at the request of Dupeafish to name Dupeafish and its Affiliates as additional insureds on such insurance policies. This can generally be done easily and without additional cost by contacting the insurance broker or insurance company. Service Provider’s compliance with this Section 10 does not limit its indemnification or other obligations under this Agreement.
Each Party may share its confidential information (the “Confidential Information”) with the other Party relating to this Agreement. The Party disclosing the confidential information shall be the “Disclosing Party” and the Party receiving the Confidential Information shall be deemed the “Receiving Party”. All information on the Dupeafish Website, including the source code as well as the terms of this Agreement and the Fee shall be the Confidential Information of Dupeafish. The Receiving Party will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or use of the Disclosing Party’s Confidential Information and the disclosure of the Disclosing Party’s Confidential Information to third parties without the Disclosing Party’s prior written consent. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the Receiving Party’s Affiliates, consultants, contractors, representatives and agents (including financial advisors, accountants and attorneys) (collectively, “Representatives”) who are acting on behalf of the Receiving Party and are bound by, or are otherwise protected by legal privilege or confidentiality and non-disclosure commitments on terms no less protective of the Confidential Information than the terms of this Agreement. If a Receiving Party is legally compelled to disclose the Disclosing Party’s Confidential Information, the Receiving Party shall (a) provide prompt written notice (if legally permissible) to the Disclosing Party so that the Disclosing Party can seek a protective order or other appropriate remedy, and (b) limit any such disclosure to the extent of the legal requirement, and the disclosed information will remain Confidential Information despite such disclosure.
Confidential Information excludes information which: (a) is or becomes (through no act or omission of the Receiving Party in breach of this Agreement), generally available to the public; (b) becomes known to the Receiving Party or any of its Affiliates on a non-confidential basis through a third party who is not subject to an obligation of confidentiality with respect to that information; (c) was lawfully in the possession of the Receiving Party or any of its Affiliates prior to such disclosure; (d) is independently developed by the Receiving Party or any of its Affiliates; or (e) the Disclosing Party agrees is not confidential or may be disclosed, to the extent of that consent.
Service Provider agree not to modify, reverse engineer or decompile the Widget, or remove or modify any attribution, promotional text, branding or links provided by Dupeafish with or in the Widget code. Service Provider agree not to syndicate or otherwise distribute the Widget to any third party.
The Widget is provided “as is” with all faults. Dupeafish is not responsible for the content, accuracy or performance of the Widget, and Dupeafish disclaims any and all express or implied warranties relating to the Widget. Dupeafish is not responsible for the content, accuracy or performance of any third party content which may be delivered to you through your use of the Widget. Dupeafish expressly disclaims any and all express or implied warranties, and any and all liability of any kind or nature, relating to such third party content. Dupeafish may change its technical processes for serving content and/or responding to the Widget, or otherwise modify the Widget in its sole discretion. Dupeafish may cease to deliver content to or otherwise support the Widget if the Widget violates applicable law or the rights of any third party, or for any other reason or no reason at all, in each case in Dupeafish’s sole discretion. Service Provider agree that you will remove the Widget from your website if you become aware that it violates copyright or any other applicable law, or if Dupeafish notifies you in writing to do so. By providing the Widget, Dupeafish does not endorse or otherwise affiliate itself with your website. Except as may be incidentally implied by the basic operation of the Widget itself (e.g. through any Dupeafish branding or links displayed by operation of the Widget), you may not display the Widget in a way that implies such an endorsement or affiliation.
Service Provider may not display the Widget on a website containing content that is pornographic; that promotes or incites hatred or violence; that invades personal rights including rights of privacy; that violates any law including intellectual property laws; or that interferes with the functioning of other websites. In the event of a legal claim arising against Dupeafish from your use of the Widget, you agree to indemnify Dupeafish for all liability and expenses incurred as a result of that claim.
Any notice or other communication given hereunder shall be deemed sufficient if in writing and sent by registered or certified mail, return receipt requested, overnight mail or courier addressed to Dupeafish at the address indicated on the Dupeafish Website. Notices hereunder shall be deemed to have been given on the date of mailing, except notices of change of address, which shall be deemed to have been given when received.
Dupeafish may revise and update this Agreement from time to time at our sole discretion and timing. All revisions, updates, or changes are effective immediately when we post them to the Website, and apply to all access to and use of the Website and Dupeafish Products and Services thereafter. However, any changes to the dispute resolution provisions set forth in the Governing Law; Venue Section below will not apply to any disputes for which the parties have actual notice on or prior to the date the revision, update, or change is posted on the Website. Service Provider continued use of the Website or Dupeafish Products and Services following the posting of revised, updated, or changed Agreement means and shall constitute your acceptance and agreement to the revisions, updates, or changes. Service Provider are expected to check, read, and agree to this page each time you access or utilize Dupeafish Website so you are aware of any revision, update, or change, as they are binding on you immediately.
Binding; Entire Agreement
This Agreement shall be binding upon and inure to the benefit of the parties hereto and to their respective heirs, legal representatives, successors, and assigns. This Agreement and its exhibits and incorporated references stated herein sets forth the entire agreement and understanding between the parties as to the subject matter thereof and merges and supersedes all prior discussions, agreements, and understandings of any and every nature between them.
Governing Law; Venue
This Agreement and its validity, construction, and performance shall be governed in all respects by the laws of the Commonwealth of Pennsylvania, notwithstanding its or any other jurisdiction’s choice of law principles without regard to its conflict of laws provisions. Any dispute or controversy arising out of, relating to, or in connection with this Agreement will be exclusively resolved in the Commonwealth of Pennsylvania, through binding arbitration (see Arbitration).
The waiver by us of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to the extent applicable, be invalid or unenforceable, the remainder of this Agreement and the application of such term of provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
Class Action Waiver
Both Service Provider and Dupeafish agree that each may bring claims against the other in an individual capacity only. Neither Service Provider nor Dupeafish may bring a claim as a plaintiff or class member in any class action, consolidated action or representative action. We both waive the right to a jury trial.
Any dispute or claim relating in any way to your use of any of Dupeafish’s services will be resolved by binding arbitration in accordance with the rules for commercial arbitration of the American Arbitration Association (or a similar organization) in effect at the time such arbitration is initiated, and subject further to the provisions of the Delaware Uniform Arbitration Act. The decision of the arbitrator shall be final and binding upon all Parties. In the event that Service Provider’s claim is rejected you are obliged to reimburse all costs, including but not limited to arbitration fees and any other legal fees, incurred in the proceedings.
No Third Party Beneficiaries
Nothing contained herein is intended, nor shall it be construed, to confer any rights or benefits upon any person (including, but not limited to, any employee, agent, contractor, officer, shareholder, member, manager or former agent of you) other than you, and no other person shall have any rights or remedies under this Agreement.
Dupeafish shall not be liable or responsible, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, electronic outages, website or Internet malfunctions, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.