1.Ticket Marketplace1.1 GoFish is a ticket marketplace that allows registered users to buy (in this capacity, “Buyer”) and sell (in this capacity, “Seller”) Tickets. The Seller (and not GoFish) sets the prices for the Tickets. As a marketplace, GoFish does not own the Tickets sold on the Site. 1.2 While GoFish may provide pricing, shipping, listing and other guidance on the Site, such guidance is solely informational (without any warranty as to accuracy). Also, while We may help facilitate the resolution of disputes between Buyer, GoFish has no control over and does not guarantee the existence, quality, safety or legality of the Tickets; the truth or accuracy of the user’s content or listings; the ability of Sellers to sell tickets or Buyers to pay for them; or that a Buyer or Seller will complete a transaction.
2. Your Account2.1 In order to list, sell or purchase Tickets you must register an account (“Account”) with GoFish. You must be at least 18 years old and must be able to enter into legally binding contracts. If you are registering with GoFish for a business entity, you represent that you have the authority to legally bind that entity 2.2 When opening an Account you must provide complete and accurate information and provide Us with a valid credit card, debit card or PayPal account (“Payment Method”). If your registration or payment information changes at any time, you must promptly update your details in your Account. You acknowledge that GoFish may charge any one of your payment methods on file for amounts you owe Us, costs We incur or other losses arising out of your violation of this Agreement (including the Additional Policies). 2.3 GoFish reserves the right to temporarily or permanently suspend Accounts with incomplete or inaccurate information. 2.4 You are solely responsible for maintaining the confidentiality of your Account information and password. You are solely responsible for any activity relating to your Account. Your Account is not transferable to another party.
4. Fees and Other Charges4.1 GoFish may charge fees for selling and/or buying Tickets through Our Site and/or otherwise using Our Services, as well as delivery or fulfillment fees (collectively referred to as “Service Fees”). Service Fees may vary depending on charter type, Ticket type and location. GoFish may in its sole and absolute discretion change its Service Fees at any time, including after you list your Tickets. Any applicable Service Fees including any taxes if applicable will be disclosed to you prior to listing or buying a Ticket. GoFish may charge and/or retain Service Fees if you do not fulfill your contractual obligations under this User Agreement. 4.2 If you as a Seller do not fulfill your contractual obligations under this User Agreement, GoFish may still charge it’s Service Fees.
5. Selling Tickets5.1 You must comply with all applicable laws and regulations and the terms of this User Agreement when listing, selling and delivering your Tickets. 5.2 By listing a Ticket for sale, you are making a binding offer to sell that Ticket to a Buyer who purchases the Ticket at the Sales Price. When a Buyer accepts your offer by purchasing your Ticket through Our Site, you are contractually bound to deliver that exact Ticket for Sales Price. You are obligated to monitor your inventory and ensure all listings are accurate.
6. TaxesYou as a Seller are responsible for determining whether any taxes are due on your sale of a Ticket, and for collecting and remitting such taxes. Any applicable taxes must be included in the Sales Price of your Ticket. You agree to provide GoFish with your Social Security Number or other tax identification number if necessary for GoFish to provide (without notice to You) information to the relevant tax authorities related to payments you receive from Us and further authorize GoFish to release that information to the relevant tax authorities. The Service Fees include any applicable sales, use, excise, value added, service and other indirect taxes.
7. Buying TicketsYou are responsible for reading the complete listing before making a commitment to buy Tickets. When placing an order, you are entering into a binding contract with the Seller to purchase those Tickets. Additional terms communicated to you by the Seller may apply. Payment is remitted to GoFish and disbursed to the seller according to Our Payment Services Agreement for Sellers or the User Agreement. All Sales are final. You cannot change or cancel any orders after the sale is complete.
8. Payments8.1 Payments received from Buyers for Tickets purchased via the Site are processed by GoFish or GoFish Services (as applicable) on behalf of the Seller and credited to the Seller in accordance with the Seller Policies and Payment Services Agreement (as applicable). Without prejudice or limitation to the Payment Services Agreement, Seller appoints the relevant GoFish entity as its limited payment collection agent solely for the purpose of accepting funds from Buyers on behalf of Seller. Seller agrees that any payment made by Buyer to GoFish shall be considered the same as a payment made directly to Seller, and Seller will make the Tickets available to Buyer in the agreed-upon manner as if Seller had received the payment directly from Buyer. Seller understands that GoFish’s obligation to pay Seller is subject to and conditional upon successful receipt of the associated payments from Buyer. GoFish guarantees payments to Seller only for such amounts that have been successfully received by GoFish from Buyer. In accepting appointment as the limited payment collection agent of seller, GoFish assumes no liability for any acts or omissions of the Seller. 8.2 Payments from Buyers are due and payable immediately. A Buyer can pay the full order amount which includes any applicable Service Fees and taxes using one of the accepted payment methods. 8.3 A Buyer’s obligation to pay for a Ticket is satisfied when GoFish or GoFish Services (as applicable) has received the Payment in full.
9. Charter Cancellations, Postponement and Other Charter Changes9.1 Cancellation: If a charter is canceled and not rescheduled, the Buyer will receive a full refund or credit in accordance with the Seller Policies and Payment Services Agreement. The payment for the sale may be recovered by charging the Seller’s Payment Method or by setting off this amount against pending payments for other Tickets the Seller has sold or will sell in the future. 9.2 Postponement: If a charter is postponed, refunds will not be issued for postponed charters, unless they are ultimately canceled as stated above in accordance with the Seller Policies and Payment Services Agreement.
10. Term and Termination10.1 This User Agreement shall commence on the date that you register an Account with GoFish and will continue for an indefinite period unless terminated in accordance with these provisions. 10.2 If you terminate this User Agreement as a Seller you are also terminating the Payment Services Agreement (to the extent applicable) as of the time of the termination of the User Agreement taking effect. 10.4 Termination of this User Agreement shall not affect the rights or liabilities of either party accrued prior to and including the date of termination or expiry and/or any terms intended expressly or by implication to survive termination or expiry.
11. Site Changes and AvailabilityGoFish reserves the right at any time to modify or discontinue, temporarily or permanently, the Site, the Services or any part of the Site or Services with or without notice for any reason. GoFish performs regularly-scheduled maintenance. While We do Our best to avoid customer impact, the Site or Our Services may be temporarily unavailable during maintenance periods.
12. Abusing the GoFish SiteWhen using Our Site and Services, you agree that you will not do any of the following:
- Contact or invite contact with other GoFish users for any reason other than the purpose for which you received the GoFish user’s contact information or solicit sales outside of GoFish;
- Use the Buyer’s personal data for any reason other than the delivery of Tickets unless otherwise agreed to by the Buyer;
- Behave in an abusive manner to any GoFish employee or other user;
- Violate any charter’s rules;
- Breach this User Agreement or Our additional policies referenced herein;
- Post false, inaccurate, misleading, defamatory or libelous content;
- Fail to fulfill your contractual obligations regarding the sale or purchase of a Ticket;
- Use GoFish’s trademarks without Our prior written permission;
- Copy, reproduce, reverse engineer, modify, create derivative works from, distribute or publicly display any content (except for your information) or software from Our Site or Services without the prior express written permission of GoFish and the appropriate third party, as applicable;
- Use any robot, spider, scraper or other automated means to access Our Site or Services for any purpose without Our express written permission;
- Take any action that imposes or may impose (to be determined in Our sole discretion) an unreasonable or disproportionately large load on Our infrastructure;
- Interfere or attempt to interfere with the proper working of Our Site or Services or any activities conducted on or with Our Site or Services;
- Commercialize any GoFish application or any information or software associated with such application; or
- Do anything else that GoFish determines, in its sole reasonable discretion, misuses the Site or Services or otherwise negatively impacts Our marketplace.
13. Content13.1 You own and are solely responsible for any content including images, text, audio or other materials that you submit (“User Content”). By submitting User Content, you grant Us a non-exclusive, worldwide, perpetual (or for the duration of any copyright or other rights in such content), irrevocable, royalty-free, transferable, sublicensable (through multiple tiers) right to use, reproduce, distribute, create derivative works from, publicly perform, display, store, or publish in any way, in any media known now or in the future. You grant GoFish the right to use your name or image in association with your User Content, if We so choose. Further, to the fullest extent permitted under applicable law, you waive your moral rights in the content and promise not to assert such rights against us, Our sublicensees or assignees. 13.2 You represent and warrant that the User Content: (a) is owned by you or you control all necessary rights to it; (b) does not violate, misappropriate or infringe on the rights of any third party including intellectual property rights, privacy rights or publicity rights; (c) is accurate, not obscene, false, libelous or defamatory; and (d) will not cause injury to any person, entity or system. You will indemnify GoFish for any and all claims resulting from your User Content. GoFish has the right but not the obligation to monitor, edit or remove your User Content. The User Content is non-confidential and GoFish will not be liable for its use or disclosure. 13.3 We may offer catalogs of stock images, descriptions and product specifications, which are provided by third-parties (including GoFish users). You may use catalog content solely in connection with your GoFish listings during the time your listings are on Our Site. While We try to offer reliable data, We cannot promise that the catalogs will always be accurate and up-to-date, and you agree that you will not hold Our catalog providers or Us responsible for inaccuracies in their catalogs. The catalog may include copyrighted, trademarked or other proprietary materials. You agree not to remove any copyright, proprietary or identification markings included within the catalogs or create any derivative works based on catalog content (other than by including them in your listings). 13.4 If you submit ideas, suggestions, documents, and/or proposals (“Ideas”) to GoFish, you do so voluntarily and with no expectation of confidentiality. By submitting Ideas, you grant Us ownership of the Ideas to use for any purpose, in any way, in any media now known or in the future and throughout the universe without any obligation or payment. You understand that GoFish may have something similar to the Ideas under consideration or in development.
14. Protecting Intellectual Property RightsGoFish respects intellectual property rights and We respond to notices of alleged infringement. If you reside in the United States, and you find material on Our Site or Services that you believe infringes your copyright or other intellectual property rights, please notify Us and We will investigate. Learn how to submit a notice to GoFish, see Appendix 1.
15. Violating the Agreement15.1 We may investigate any potential or suspected violations of the User Agreement, Additional Policies, security protocols or best practices, third-party rights or applicable law; any actions or any other misconduct or potential abuse on or through the Services or attempts. When assessing whether and which measure(s) to take against a user, We will take the legitimate interests of the user into account, and shall in particular consider if the user is responsible for the misconduct. 15.2 We may take any actions We deem appropriate in Our reasonable discretion for the conduct described in 19.1.Without limiting other remedies, these actions may include: limit, or temporarily or permanently suspend, or terminate Our services and Accounts, restrict or prohibit access to, and your activities on, Our Site and/or Services, remove listings, require you to edit listings, cancel sales, require you to send Tickets to a Buyer within a specified time, delay or remove hosted content, remove any special status associated with an Account, reduce or eliminate any discounts, withhold payment, charge the Payment Method on file for amounts you owe or costs We incur due to your misconduct (including, without limitation, any costs associated with collection of delinquent Accounts or chargebacks and any replacement costs), and take technical and legal steps to keep you from using Our Site and/or Services. 15.3 We reserve the right to report any activity that We believe to be illegal or otherwise in contravention of this User Agreement and We will respond to any verified requests relating to a criminal investigation (i.e. a subpoena, court order or substantially similar legal procedure) from local and foreign law enforcement or regulatory agencies, other government officials or authorized third-parties.
16. Disclaimer of Warranties; Limitation of Liability; Assumption of Risk
16.1 YOU UNDERSTAND AND AGREE THAT YOU ARE MAKING USE OF THE SITE AND SERVICES ON AN ‘AS IS’ AND ‘AS AVAILABLE’ BASIS. GOFISH MAKES NO WARRANTY WITH RESPECT TO ITS SOFTWARE, SERVICES, SITE, ANY TICKETS, ANY CHARTER, ANY USER CONTENT, OR THAT SELLERS OR BUYERS WILL PERFORM AS PROMISED. ACCORDINGLY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS SPECIFICALLY PROVIDED IN THIS USER AGREEMENT AND IN OUR FANPROTECT GUARANTEE, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT.
16.2 IN ADDITION, TO THE MAXIMUM EXTENT PERMITTED BY LAW, GOFISH (INCLUSIVE OF ANY OF ITS SERVICE PROVIDERS AND LICENSORS) IS NOT LIABLE FOR: (A) ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES; (B) LOSS OF: PROFITS, GOODWILL OR REPUTATION, OR OTHER INTANGIBLE LOSSES; (C) DAMAGES RELATING TO: (I) YOUR ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SITE OR SERVICES; (II) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING OUR SITE OR SERVICES OR THOSE OF ANY SITE, SERVICES, OR TOOLS LINKED TO OUR SITE OR SERVICES; (III) ANY USER CONTENT OR CONTENT OF THIRD PARTIES, OR (IV) THE DURATION OR MANNER IN WHICH TICKETS YOU LIST APPEAR ON THE SITE OR SERVICES.
16.3 SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, SO SUCH DISCLAIMERS AND EXCLUSIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE RIGHTS IN ADDITION TO THOSE CONTAINED IN THIS USER AGREEMENT. THIS IS ESPECIALLY SO IF YOU ARE A CONSUMER.
16.4 REGARDLESS OF THE PREVIOUS CLAUSES, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES IN DISPUTE NOT TO EXCEED THE TOTAL FEES WHICH YOU PAID TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY, OR (B) $200.
16.5 TICKETS ARE SOLD FOR THE PARTICIPATION IN AN ACTIVIEY THAT IS HAZARDOUS AND INVOLVES RISKS OF PHYSICAL INJURY THAT MAY INCLUDE DEATH. YOU ASSUME ANY AND ALL RISK OF PROPERTY DAMAGE, INJURY OR DEATH; WAIVE, RELEASE, AND AGREE NOT TO SUE, MAKE ANY CLAIM OR FILE ANY ACTIONS AGAINST GOFISH FOR ANY PROPERTY DAMAGE, INJURY OR LOSS, INCLUDING DEATH, WHICH ARISES IN WHOLE OR IN PART FROM YOUR PARTICIPATION IN THE ACTIVITY FOR WHICH THE TICKETS WERE PURCHASED, INCLUDING WITHOUT LIMITATION THOSE CLAIMS BASED ON GOFISH’S ALLEGED OR ACTUAL NEGLIGENCE, BREACH OF ANY CONTRACT AND/OR EXPRESS OR IMPLIED WARRANTY; AND INDEMNIFY, DEFEND AND HOLD GOFISH HARMLESS FROM ANY AND ALL CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, LOSSES OR LIABILITIES WHATSOEVER ARISING FROM OR RELATED TO PARTICIPATION IN THE ACTIVITY FOR WHICH THE TICKETS WERE PURCHCASED.
17. Applicable Laws and Jurisdiction; DisputesThe laws of the State of California will govern all terms, conditions and disclaimers on these Services, without giving effect to any principles of conflicts of laws. You and GoFish agree that, except as otherwise explicitly set forth herein, all claims, controversies, and disputes arising out of or relating to these Terms, Service specific terms or conditions, the Services, User Content, or otherwise which are not resolved by negotiation between the parties shall be submitted to binding arbitration in Ventura County, California, before a single arbitrator in accordance with the rules and procedures of the Judicial Arbitration and Mediation Service (JAMS). Notwithstanding the foregoing, the following claims, actions, and disputes will not be subject to arbitration and may be brought in permitted state and federal courts: actions by GoFish seeking injunctive relief or specific performance; actions regarding the applicability of, enforcement of, or recovery of losses or damages pursuant to any indemnification obligations; and actions brought by GoFish to collect unpaid fees. To the extent any claim is permitted outside of arbitration, including qualifying claims in small claims court, the exclusive jurisdiction of any such claim or dispute shall be the appropriate state or federal court in Ventura County, California. Each party hereby irrevocably waives any right to a trial by jury in connection herewith.
18. Release and Indemnification18.1 To the fullest extent permitted by law, you release and covenant not to sue GoFish, its affiliated companies, and Our and their respective officers, directors, agents, joint venturers, employees, legal representatives, and suppliers from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with disputes between users. In entering into this release you expressly waive any protections (whether statutory or otherwise – e.g., California Civil Code § 1542) that would otherwise limit the coverage of this release to include only those claims, which you may know or suspect to exist in your favor at the time of agreeing to this release. 18.2 You agree to indemnify and hold Us and (if applicable) Our parent, subsidiaries, affiliates, and Our and their respective officers, directors, attorneys, agents, employees, licensors and suppliers (the “GoFish Indemnitees”) harmless against any claim or demand and all liabilities, costs and expenses (including reasonable attorneys’ fees) incurred by Us and (if applicable) any GoFish Indemnitee resulting from or arising out of your breach of this User Agreement, your improper use of Our Site or Services, and/or your violation of any law or the rights of a third party.
19. Consumer NoticeIn accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
20. General Provisions20.1 This User Agreement (and all documents incorporated by reference) constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements and understandings between the parties hereto with respect to the subject matter hereof, whether written or oral. No amendment, modification or supplement of any provision of this User Agreement will be valid or effective unless made in accordance with the express terms of this User Agreement. 20.2 If any provision of this User Agreement is held to be invalid or unenforceable under any circumstances, its application in any other circumstances and the remaining provisions of this User Agreement shall not be affected. 20.3 We may assign or transfer Our rights and obligations under this User Agreement at any time, provided that We assign the User Agreement on the same terms or terms that are no less advantageous to you. You may not assign or transfer this User Agreement, or any of its rights or obligations, without Our prior written consent, which We can refuse in Our sole discretion. 20.4 No agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship is intended or created by this User Agreement, your use of the Site, or the provision of Our Services. A person who is not a party to this User Agreement has no right to enforce any term of this User Agreement. 20.5 Nothing in this User Agreement is intended to confer benefits, rights or remedies unto any person or entity other than the parties hereto and their permitted successors and assigns. 20.6 The subject heading at the beginning of each paragraph of this User Agreement is for reference purposes only and in no way defines, limits, construes or describes the scope or extent of such paragraph. The following sections survive any termination of this User Agreement: Contracting entity, fees and other charges, taxes, payments, abusing GoFish, content, liability, applicable laws, release and indemnification, additional provisions applicable to US residents and charters in the USA, general provisions. 20.7 Our failure to act with respect to a breach by you or others does not waive Our right to act with respect to subsequent or similar breaches. We do not guarantee We will take action against all breaches of this User Agreement. 20.8 Legal notices to Us shall be served by registered mail to Our address set forth above. We shall send notices to you by email to the email address you provide to Us during the registration process. Notice to you shall be deemed given 24 hours after the email is sent, unless We are notified that the email address is invalid. Alternatively, We may give you legal notice by registered mail to the postal address provided during registration. Notices sent to either party by registered mail shall be deemed to have been received by that party three days after the date of mailing.
21. Force MajeureGoFish shall not be in default or otherwise liable under this User Agreement due to its inability to perform its obligations by reason of any fire, earthquake, flood, substantial snowstorm, epidemic, pandemic, accident, explosion, casualty, strike, lockout, labor controversy, riot, civil disturbance, act of public enemy, terrorism, cyber-terrorism, embargo, war, act of God, natural disaster, or any municipal, county, state or national ordinance or law, or any executive, administrative or judicial order (which order is not the result of any act or omission which would constitute a default by GoFish hereunder), or any failure or delay of any transportation, power, or communications system or any other or similar cause not under GoFish’s control (“Force Majeure”).