FLX Boating, LLC
D/B/A Freedom Boat Club of Canandaigua (FBC)
811 South Main Street, Canandaigua, New York 14424
(585) 577-8888
Rules and Regulations - Membership Agreement

In presenting these Rules and Regulations to you, our Member, we have three primary responsibilities that we uphold to the best of our abilities: your safety, the safety of others around you and the effective preservation of our company and its employees. These are the factors that were and will continue to be paramount in our adaptation of these Rules.

1. A Member of FBC must be 21 years of age, have signed the contract, have successfully completed the New Member orientation and have a valid New York Safe Boating Card (if required) in order to reserve or operate club boats. Member's account must be current, and Member must be in compliance with all Agreement terms and Rules and Regulations in order to place a reservation. FBC may prohibit a Member from reserving or operating an FBC boat or may terminate the membership if any of the following occur:

A. Member's account is delinquent
B. Allowing a non-member to operate an FBC vessel
C. Operating an FBC boat in an impaired condition (see Rule #2 below)
D. Member has used language or has behaved in a manner which is unbecoming to the FBC Member, his party, FBC employees or is consistently discourteous in demeanor
E. Frequent boating mishaps or reckless operation
F. Failure to adhere to the Rules and Regulations
G. Member engages in a business or activity injurious to Freedom Boat Club

2. Operation of a boat in an impaired condition is strictly prohibited and will result in membership suspension or termination. It may result in serious injury to others and damage to the boat or to other boats. Our insurance coverage severely restricts coverage in such instances where alcohol/drugs are involved.

3. MEMBERSHIP BOAT RESERVATION PRIVILEGES: A weekday boating reservation is defined as one session usage any time during the daily weekday hours. M-Fri sessions are 8:30a-1:30p, and 2:30p-Sunset (sunset return time posted daily at marina). A weekend/holiday boating reservation is defined as one session usage during the weekend hours. Sat/Sun sessions are 8:30a-1:30p and 2:30p-Sunset (sunset return time posted daily at marina). All boats are due back before sunset when sunset occurs before normal closing hours. Member shall have unlimited yearly reservations; however, a member may not have more than four reservations at any given time, two of which may be weekend/holiday reservations. Reservations may be scheduled up to six months in advance. Both a morning and an afternoon reservation may be booked but counts as two reservations. Selection of dates and boats are subject to availability and must be reserved by Member in accordance with these Rules. Scheduling will be handled on a first-come, first-served basis. Friends and Family Plans are treated as an individual membership and will follow the reservation details outlined in their agreement. Two members cannot reserve two different boats on the same day during the same reservation period just as a single Member cannot. Failure to use boats shall not relieve Member of any liability for payments due to FBC.

4. ADDITIONAL MEMBERSHIP BOAT RESERVATION PRIVILEGES: Member shall have unlimited use of FBC boats on an as-available, stand-by, same-day usage basis, except on days when FBC is closed. Member may call the dock manager on the morning of desired use to check availability. Failure to use boats shall not relieve Member of any liability for payments due FBC.

5. FBC retains the right to move, add/or reduce boats and FBC club locations. FBC also retains the right to close a location on certain days due to inclement weather or reduced seasonal operational hours.

6. RESERVATIONS can be made anytime through our Internet Reservation system. FBC reserves the right to substitute, alter, or cancel boats that are reserved or scheduled by a Member. If you anticipate arriving at the dock later than one hour after your scheduled reservation time, you must call the dock and alert them to your delayed arrival. If you have not arrived, or notified the dockmaster of your expected arrival time, within (1) hour of your reservation time, your boat will be forfeited and released to the standby list.

7. EVENING HOURS: Nighttime operation of FBC boats is prohibited. All FBC boats must be secure at a dock from before sunset until after sunrise. If Member keeps a boat beyond reservation time, FBC retains the right to assess a $25 late fee per half hour. FBC retains the right to terminate membership for multiple infractions of late returns. FBC Canandaigua is not insured for boating after dark and Member will not be covered for any damages that occur if boat is kept after hours.

8. OVERNIGHT BOAT RETENTION: In order for a member to retain a boat overnight, a two-day concurrent reservation must be made online, and final documentation approval must be obtained by providing a physical address of where the boat will be docked overnight. These arrangements must be made in advance prior to picking up the vessel. Please email the address to CANANDAIGUA@FREEDOMBOATCLUB.COM as soon as your arrangements are made to ensure approval has been documented. Member agrees to keep the boat at a proper dock and further agrees not to be on the water from sunset to sunrise. Overnight Boat Retention must be confirmed via the Online Reservation System.

9. FRANCHISEE BOAT USAGE: Franchisees of FBC are independent businesses that pay a royalty to FBC to use the Freedom name. Effective June 1, 2009 the reciprocal boat usage agreement between FBC and its Franchisees allows members to use Franchise locations on an as-available basis four boat uses per club each year. Before boating at a Franchise location, Member must reserve through the online reservation system. Member must have an appropriate training certification for the vessel they wish to use. When reserving or using FBC Franchise boats, member agrees to abide by individually owned FBC Franchise Rules and Regulations which may be different than these Rules and Regulations.

10. BOAT USAGE PRIVILEGES: Before and after boating, Member must complete the Check Out procedure. Additionally, orientations/certifications are required for offshore boats and sailboats. Members are expected to return the FBC boat by previously designated times. It is the Member's responsibility to return a fishing boat in the same condition as when the boat left the dock, i.e. in shipshape condition. Fish may not be cleaned on board any FBC boats. FBC boats may not be used for any commercial purposes. Water-sports activities such as water-skiing, knee boarding, wake surfing, wake boarding and tubing are only allowed on specific FBC boats. If unsure, check with the dock manager. A waiver must be signed to participate in all watersports. Fishing is not permitted on wake/surf boats or double-deck pontoon boats. Non-aggressive pets are allowed on all boats. Any damage caused by a pet will be charged to the member. Dogs must remain on leash at all times when on marina property.

11. RESPONSIBILITY FOR BOAT: Member shall be solely and exclusively responsible for any loss or damage to the FBC boat and accessory equipment from the time that such boat and accessory equipment is furnished to Member up to and including the time of its proper check in to FBC. At no time shall Member allow anyone other than another trained Member to operate any FBC boat. By virtue of FBC's Hull & Machinery insurance coverage, in which each Member is an additional insured, a Member's liability to FBC is limited to the greater of either 2% of boat insured value or $2500.00 for each boat damaged per incident (plus sales tax per boat per incident). If operating a boat in an impaired condition is a contributing factor in an accident then the member is fully responsible. Any damage that occurs while an FBC boat is in Member's possession will be noted and charged at check-in.

However, some items, particularly damage to the engine (i.e., caused by entangling the prop in rope or fishing line, running the engine at high rpm after a problem occurs, etc.), may not be noticed at the time of check-in. If damage is discovered after check-in, and FBC deems the Member to be responsible, the Member will be billed for all damage/cost incurred by FBC to restore the FBC boat to the same condition as originally delivered to Member. At FBC's sole discretion, Member may be denied boat usage until payment is received for any damage to an FBC boat. In addition, FBC may require the Member to attend a meeting to discuss the damage, and FBC, at its sole discretion, may take any action deemed necessary, including suspension or termination of membership.

12. PARKING: Due to the limited parking space availability at the FBC marina location, please try to limit the number of vehicles to one per reservation.

13. TOWING: FBC will be responsible for reasonable towing charges as defined by FBC, unless it has been determined that the towing is necessitated by the Member's recklessness or ignorance (soft grounding vs. hard or low-tide grounding for example). A towing charge of $175 will be assessed for any tow deemed to result from member negligence or error. Additionally, FBC's insurance policy strictly prohibits members taking another vessel under tow.

14. INJURY AND DAMAGE TO PROPERTY: Member recognizes that the operation of any boat is a specialized activity that requires training and experience and has both obvious and non-obvious dangers associated with it. Member acknowledges that many such dangers produce risk of injury to Member, Member's passengers, and the public in general regardless of the training and experience of the operator of the boat and regardless of the proper maintenance and condition of the boat. Accordingly, Member knowingly accepts sole and exclusive responsibility at all times for the safety of all persons and property on board the FBC boat, and all persons who may come in contact with the FBC boat, including Member, Member's passengers and the public in general. For purposes of personal injury claims, a Member is deemed automatically to be additional assured on FBC's Hull & Machinery and Protection & Indemnity policy(ies) subject to the Co-Assured Clause, and will be afforded the same coverage and protection afforded FBC under such an insurance policy. MEMBER ACKNOWLEDGES THAT FBC’S INSURANCE COVERAGE IS FOR THE MEMBER AND GUESTS ONLY WHILE THE MEMBER IS OPERATING (PILOTING) THE BOAT. INSURANCE COVERAGE DOES NOT APPLY IF ANY NONMEMBER IS OPERATING A FBC INSURED BOAT DURING AN ACCIDENT. MEMBER AGREES TO RELEASE, INDEMNIFY, DEFEND AND HOLD FBC, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS HARMLESS FROM AND AGAINST ALL CLAIMS, LOSS, DAMAGE, EXPENSE (INCLUDING REASONABLE ATTORNEY'S FEES AND COSTS AND EXPENSES OF LITIGATION) FOR INJURY OR LOSS OF ANY SORT INCLUDING BODILY INJURY, DEATH, PROPERTY DAMAGE OR OTHER LOSS OF ANY KIND OR NATURE WHETHER KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, PATENT OR LATENT ARISING FROM OR RELATING TO THE USE OR OPERATION OF AN FBC BOAT IN VIOLATION OF THE MEMBERSHIP AGREEMENT OR THESE RULES AND REGULATIONS. THIS RELEASE AND INDEMNIFICATION OF FBC, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS SHALL EXTEND TO ANY INJURY OCCASIONED WHOLLY OR IN PART BY ANY ACT OR OMISSION OF FBC, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS. Member further understands and acknowledges that FBC is not responsible for death, injury or property loss or damages resulting from or arising out of (i) the acts or omissions of any third parties or (ii) Member’s operation of the boat and related water sport activities, including without limitation, swimming, diving, snorkeling, water-skiing, knee boarding, wake surfing, wake boarding and tubing. Only specific FBC boats allow for these water-sports activities. Member shall hold FBC harmless and shall indemnify FBC against any claims by any persons arising from such water sport activities.

15. STATUS: Member's rights are for the prepaid use of FBC boats only, and nothing contained in this Agreement is intended or shall be construed as creating any rights of ownership, legal or equitable, in any of the boats or in FBC, its stock or assets.

16. COMPLIANCE WITH LAWS AND ORDINANCES: Member shall comply with all applicable governmental laws, ordinances, orders, and regulations now in force or which may hereafter be in force insofar as they pertain to the use, operation and utilization of boats. Member shall also comply with all requirements of any insurance companies providing insurance for FBC and the rules and regulations of any marina or other docking facility in which FBC boats are located.

17. DEFAULT: Any of the following shall constitute an event of default with respect to this Agreement: (a) any failure by Member to pay when due the full amount of any deferred payment under obligation, debt installment, or other charge hereunder; or (b) failure of Member to abide by and adhere to the Rules and Regulations of FBC or of the marina where FBC's boats are docked, as now in effect or as hereafter amended; or (c) the failure or inability of the Member, as demonstrated to FBC, in it's sole judgment, to operate the boat 1) in a safe, alert, and cautious manner, 2) exercising due caution to protect the boat and engine from damage, and 3) within any operational requirements or limitations published by FBC, or (d) Members' use of a FBC boat in any manner that poses a nuisance upon the seas, or a substantial risk of personal injury, death and/or property damage. No waiver or indulgence by FBC with respect to any given default shall constitute a waiver of FBC's rights with respect to any subsequent default or breach.

18. REMEDIES ON DEFAULT: Upon the occurrence of any event of default by the Member, FBC may at its option (a) terminate this agreement and all membership rights of Member hereunder, and declare any and all of any portion of the Membership Initiation Fee which shall have been financed, and any finance charges accruing thereon to the date of default, and all dues and other charges that have been accrued, to be immediately due and payable; (b) terminate this agreement and all membership rights of Member arising hereunder, and FBC shall be entitled to retain as liquidated damages, and not as a penalty, all sums previously paid to FBC by Member pursuant to this agreement; (c) FBC shall have all legal and equitable remedies available in the event of any default, and shall take any such judicial action needed at the sole discretion of FBC. In the event of any arbitration or legal proceedings brought by any party to construe or enforce the provisions of this agreement, or in the event there is any arbitration or other litigation which arises from or relates to this agreement and/or the operation of a FBC boat by Member, the prevailing party shall be entitled to reasonable attorney fees, costs and expenses incurred in any such arbitration or legal proceeding. Member and FBC each irrevocably and unconditionally (a) agree that any suit, action, arbitration or legal proceeding arising out of or relating to this Agreement shall be brought exclusively in Ontario County Court, Canandaigua, NY, or the closest court having jurisdiction thereto; (b) consents to the jurisdiction of any such court or arbitrator in any suit, action or proceeding; (c) waives any objection which it may have to the laying of venue of any such suit, action or proceeding in Ontario County Court, Canandaigua, NY, or the closest court having jurisdiction thereto; and (d) agrees that service of any court or arbitration notice may be effected on such party by mail or in such other manner as may be provided under applicable laws or court rules of the State of New York.

19. ARBITRATION OF DISPUTES: The parties to this agreement specifically agree that any dispute (whether contract, tort, statutory, or otherwise) arising under or relating in any way to (i) the rules and regulations and Membership agreement of FBC, (ii) your membership in FBC, (iii) your use of any boat in connection with your membership or (iv) any other dealings between you and FBC, including but not limited to any claims for money damages or for personal injury or wrongful death shall be submitted to binding arbitration in Ontario County Court, Canandaigua, NY, or the closest court having jurisdiction thereto in accordance with the Commercial Arbitration Rules of the American Arbitration Association by a single arbitrator. The arbitrator shall be selected by mutual agreement of FBC and Member within twenty (20) days following the initiation of arbitration hereunder, or, absent such agreement, by appointment by the American Arbitration Association. The arbitration procedure shall be governed by the United States Arbitration Act, 9 U.S.C. §§ 1-16, and the award rendered by the arbitrator shall be final and binding on the parties and may be entered in any court having jurisdiction thereof.

Each party shall have discovery rights as provided by the Federal Rules of Civil Procedure within the limits imposed by the arbitrator; provided, however, that all such discovery shall be commenced and concluded within ninety (90) days of the selection or appointment of the arbitrator.

It is the intent of the parties that any arbitration shall be concluded as quickly as reasonably practicable. Unless the parties otherwise agree, once commenced, the hearing on the disputed matters shall be held four (4) days a week until concluded, with each hearing date to begin at 9:00 a.m. and to conclude at 5:00 p.m. unless otherwise agreed. The arbitrator shall use all reasonable efforts to issue the final award or awards within a period of five (5) business days after closure of the proceedings. Failure of the arbitrator to meet the time limits of this Section shall not be a basis for challenging the award.

The arbitrator shall instruct the non-prevailing party to pay all costs of the proceedings, including the fees and expenses of the arbitrator and the reasonable attorneys' fees and expenses of the prevailing party. If the arbitrator determines that there is not a prevailing party, each party shall be instructed to bear its own costs and to share equally the fees and expenses of the arbitrator.

20. JURY TRIAL: It is the intent of the parties that any dispute of any kind whatsoever between the parties to this agreement shall be settled and finally determined in arbitration before the American Arbitration Association ("AAA") in accordance with Section 15. HOWEVER, IN THE EVENT IT IS DETERMINED THAT A DISPUTE BETWEEN THE PARTIES IS TO BE DETERMINED IN A COURT OF LAW, THE PARTIES TO THIS AGREEMENT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ARISING OR RELATING IN ANY WAY TO MEMBERSHIP IN FBC.

21. LIMITATIONS ON WARRANTIES AND LIABILITY: FBC MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, EXCEPT THOSE INCLUDED IN THIS AGREEMENT. MEMBER ACKNOWLEDGES THAT ALL BOATS PROVIDED BY FBC ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN PARTICULAR, WITHOUT IN ANY MANNER LIMITING THE FOREGOING, FBC MAKES NO REPRESENTATIONS OF WARRANTIES AS TO THE QUALITIES, CAPACITY, OR OTHER ATTRIBUTES OF ANY OF THE BOATS, THE USE OF WHICH WILL OR MAY BE FURNISHED TO MEMBER PURSUANT TO THIS AGREEMENT AND ANY SUCH REPRESENTATIONS OR WARRANTIES WHICH MAY BE MADE OR UPON WHICH MEMBER MAY RELY ARE EXCLUSIVELY THOSE OF THE MANUFACTURERS OF SAID EQUIPMENT. FBC SHALL NOT BE RESPONSIBLE OR LIABLE AT ANY TIME FOR LOSS OR DAMAGE TO PERSONAL PROPERTY BROUGHT BY MEMBER, OR ANY OF MEMBER'S FAMILY, GUESTS, INVITEES, OR THIRD PARTY ABOARD FBC BOATS USED BY MEMBER. FBC SHALL NOT BE RESPONSIBLE OR LIABLE TO MEMBER FOR ANY DEFECT, LATENT, OR OTHER DEFECTS OF ANY TYPE OR NATURE IN ANY BOAT OR ANY EQUIPMENT, APPLIANCES, OR APPARATUS UTILIZED IN CONNECTION WITH SUCH BOAT, NOR SHALL FBC BE RESPONSIBLE OR LIABLE FOR ANY INJURY OR DAMAGE CAUSED BY OR RESULTING FROM ANY DEFECT, ACT, OR OMISSION IN THE CONSTRUCTION, MAINTENANCE, OPERATION, OR USE OF ANY BOAT, OR ANY EQUIPMENT, FIXTURES, APPLIANCES, OR APPARATUS UTILIZED IN CONNECTION WITH SUCH BOAT. MEMBER FURTHER ACKNOWLEDGES AND AGREES THAT MEMBER IS WAIVING AND RELEASING ANY AND ALL CLAIMS WHICH MEMBER COULD MAKE AGAINST FBC, ITS PARENT AND AFFILIATES, OR ANY OFFICER, DIRECTOR, EMPLOYEE, MEMBER OR AGENT OF FBC FOR ANY PERSONAL INJURY OR PROPERTY DAMAGE ARISING FROM ANY DEFECT, LATENT OR OTHERWISE, IN ANY BOAT OR ANY EQUIPMENT, APPLIANCES, OR APPARATUS UTILIZED IN CONNECTION WITH SUCH BOAT.

22. FORCE MAJEURE: FBC shall be excused from performance, or any delays in performance hereunder, due to fire, flood, earthquakes, hurricane, acts of God, unavailability of materials, equipment or fuel, war, declaration of hostilities, revolt, civil strife, altercation or commotion, strike, labor disputes, epidemic, lack of or failure of fork-lift or transportation facilities, mechanical breakdowns, any law, order, proclamation, regulation or ordinance of any government or subdivision thereof, or for any other cause whether similar or dissimilar to those enumerated, beyond the reasonable control of FBC.

23. TRANSFERABILITY OF MEMBERSHIP: Freedom Boat Club Membership and its privileges shall not be transferable by Member to any other party. A Member may, however, move or take his/her membership to any existing club location by paying a transfer fee of $500 to the new club and proceed paying the new club’s monthly dues rate in effect at the time of transfer.

24. ALL AMOUNTS PAID BY THE MEMBER PURSUANT TO THIS AGREEMENT, WHETHER BY WAY OF DEPOSITS, MEMBERSHIP FEES, INSTALLMENT PAYMENTS, MEMBERSHIP DUES, OR OTHERWISE, ARE IMMEDIATELY EARNED AT THE TIME OF PAYMENT, ARE NONREFUNDABLE AND SHALL NOT BE SUBJECT TO CLAIM FOR REFUND FOR ANY CAUSE WHATSOEVER. FURTHERMORE, FBC HAS AN ONGOING CREDIT POLICY FOR ITS MEMBERS. LATE CHARGES OF 1.5% PER MONTH (18% APR) WILL BE ASSESSED ON PAST-DUE ACCOUNTS, AND COLLECTION CHARGES AND/OR ATTORNEY’S FEES MAY BE ADDED.

25. ASSIGNMENT OF PROCEEDS: FBC may assign its right to receive any deferred payment obligations, dues or any other sums that may be due or become due to FBC pursuant to this Agreement. Upon written notice to Member of any such assignment, all sums thereby assigned shall be payable directly to the assignee at the address designated.

26. MEMBERSHIP FEES: FBC agrees to not increase Membership Fees by more than 5% per year. This increase does not apply to membership agreements written before 12/1/2019.

27. ADMINITRATIVE FEE: Member agrees to pay the FBC Membership Fees owed plus applicable sales tax monthly by ACH debit initiated by FBC from an approved U.S. bank in USD. Any form of payment chosen other than ACH debit will incur a monthly $10 administrative fee per transaction.

28. FBC - PLUS PLAN SUMMARY (if applicable): FBC Plus includes: MINOR DAMAGES: Up to $500 total in annual benefits for “boating equipment” paid directly to cover damage to propellers, anchors or attachments, bimini tops and/or canvas, life preservers, life rings or any other miscellaneous items used in the navigation and operation of boats owned by FBC and/or its franchisees. TOWING: Up to $1000 in annual benefits paid in reimbursement for reasonable charges associated with the towing of a boat that the member may incur due to operator error, while using a FBC vessel. This does not apply to salvage charges. MAJOR DAMAGE: Zero Deductible for up to two occurrences in your calendar year. The total aggregate of this benefit is a maximum of $5000, depending on the total amount of the potential two occurrences, with a maximum of up to $2500 per occurrence. Enrollment is subject to approval by Freedom Boat Club management and may be cancelled or terminated at any time, for any reason in the sole discretion of Freedom Boat Club management.

29. BINDING EFFECT; ENTIRE AGREEMENT; MODIFICATIONS: If any provision of this Agreement is declared invalid or unenforceable for any reason, the remainder of the Agreement shall not be affected and shall remain in full force and effect. This Agreement is binding upon the parties hereto and their heirs, legal representatives, successors, and permitted assigns, and shall be governed by the internal substantive laws of the State of New York without regard to any conflict of law provisions. The parties hereby agree that this instrument contains the entire agreement between the parties and there is and can be no other oral or written agreement or understanding, written or oral, unless the same is set forth in a writing signed by all parties to this agreement. Any such waiver or consent shall be effective only in this specific instance and for the specific purpose given. Notwithstanding the foregoing, the rules and regulations and membership agreement may be changed from time to time as set forth in paragraph 28. There are no collateral understandings or agreements other than those contained herein, and Member understands and agrees that there are no terms, conditions, statements, warranties, or representations, oral or written, not contained herein. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall collectively constitute one instrument.

30. RULES AND REGULATIONS: Member agrees to abide by the Rules and Regulations promulgated and from time to time modified by FBC. Changes in these Rules and Regulations shall become effective upon adoption by FBC. A copy of the revised Rules and Regulations will be available at each FBC location. REVISED AND ADOPTED ON November 27th, 2019 [SIGNATURE PAGE FOLLOWS.]

MEMBER ACKNOWLEDGES RECEIPT OF FBC’S RULES AND REGULATIONS AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED THEREIN.