CLAUSE 1 – AGREEMENT TO LET AND HIRE
The OWNER agrees to let the Vessel to the CHARTERER and not to enter into any other Agreement for the Charter of the vessel for the same period. The CHARTERER agrees to hire the Vessel and shall pay the Charter Fee, the Advance Provisioning Allowance, the Delivery / Re-delivery Fee and any other agreed charges, in cleared funds, no later than the dates and to the Account specified in this Agreement.
CLAUSE 2 – DELIVERY
The OWNER shall, at the beginning of the Charter Period, deliver the Vessel free of encumbrance to the Place of Delivery in compliance with its flag state requirements and the CHARTERER shall take delivery in full commission and working order. The Vessel shall be insured (see Clause 13), seaworthy, clean, in good condition throughout and ready for service, with full equipment, including up-to-date safety and lifesaving equipment (including life-jackets for children if any are carried in the CHARTERER’s Party), as required by the Vessel’s registration authority and fitted out as appropriate for a Vessel of her size and type and enabling the CHARTERER to use the Vessel as set out in Clause 11. The OWNER does not warrant her use and comfort in bad weather conditions or when guests are not in an optimal state of health.
a) Delay in delivery by reason of force majeure (as defined in Clause 19)
If the OWNER fails to deliver the Vessel to the CHARTERER at the Place of Delivery at the commencement of the Charter Period and delivery is made within forty-eight (48) hours of the scheduled commencement date, the OWNER shall pay to the CHARTERER a refund of the Charter Fee at a pro rata daily rate or, if it be mutually agreed, the OWNER shall allow a pro rata extension of the Charter Period.
b) Failure to deliver by reason of force majeure (as defined in Clause 19)
If the OWNER tenders notice of cancellation prior to the commencement of the Charter Period or fails to deliver the Vessel to the CHARTERER within forty-eight (48) hours to the Place of Delivery, the CHARTERER shall be entitled to treat this Agreement as terminated. The CHARTERER’s exclusive remedy will be to receive immediate repayment without interest of the full amount of all payments made by him under the terms of this Agreement. Alternatively, if the PARTIES mutually agree, the Charter Period shall be extended by a time equivalent to the delay or postponed to a mutually agreed time.
c) Failure to deliver NOT by reason of force majeure
If the OWNER fails to deliver the Vessel at the Place of Delivery at the commencement of the Charter Period not by reason of force majeure but for any other reason, the CHARTERER shall be entitled to treat this Agreement as repudiated by the OWNER. The CHARTERER will be entitled to immediate repayment without interest of the full amount of all payments made by him under the terms of this Agreement and shall, in addition, be paid by the OWNER liquidated damages of an amount equivalent to fifty percent (50%) of the Charter Fee.
CLAUSE 3 – RE-DELIVERY
The CHARTERER shall re-deliver the Vessel to the OWNER at the Place of Re-Delivery free of any debts incurred for the CHARTERER’s account during the Charter Period and in as good a condition as when delivery was taken, except for fair wear and tear arising from ordinary use. The CHARTERER may, if he wishes, re-deliver the Vessel to the Place of Re-Delivery and disembark prior to the end of the Charter Period but such early re-delivery shall not entitle the CHARTERER to any refund of the Charter Fee.
a) Delay in re-delivery by reason of force majeure (as defined in Clause 19)
If re-delivery of the Vessel is delayed by reason of force majeure, re-delivery shall be effected as soon as possible thereafter and in the meantime the conditions of this Agreement shall remain in force but without penalty or additional charge against the CHARTERER.
b) Delay in re-delivery NOT by reason of force majeure
If the CHARTERER fails to re-deliver the Vessel to the OWNER at the Place of Re-Delivery not by reason of force majeure but for any other reason (intentional delay or change of itinerary against the Captain’s advice), then, the CHARTERER, shall pay forthwith to the OWNER an indemnity at the daily rate plus fifty percent (50%) of the daily rate. The CHARTERER shall be liable for all operating costs and indemnify the OWNER for any loss or damage which the OWNER shall suffer by reason of deprivation of use of the Vessel or cancellation of, or delay in delivery under any subsequent Charter of the Vessel.
CLAUSE 4 – CRUISING AREA
a) The CHARTERER shall restrict the cruising of the Vessel to within the Cruising Area and to within regions in the Cruising Area in which the Vessel is legally permitted to cruise. The CHARTERER shall also restrict time under way to an average of six (6) hours per day, unless the Captain, at his sole discretion, agrees to exceed this time.
b) While the Captain will make all reasonable efforts to accommodate the CHARTERER’s request for a berth; it is understood that the Captain and the OWNER cannot be held liable for the non-allocation of the berth.
CLAUSE 5 – MAXIMUM NUMBER OF PERSONS – RESPONSIBILITY FOR CHILDREN – HEALTH OF THE CHARTERER’S PARTY
a) The CHARTERER shall not at any time during the Charter Period permit more than the Maximum Number of Guests Sleeping or Cruising on Board plus, at the sole discretion of the Captain, a reasonable number of visitors whilst the Vessel is securely moored in port or at anchor, or as permitted by the appropriate authority.
b) If children are taken on board, the CHARTERER shall be fully responsible for their conduct and entertainment and no member of the Crew shall be held responsible for their conduct or entertainment.
c) The nature of a yacht Charter may render it uncomfortable or unsuitable for anybody with physical disability, sensitive to seasickness or undergoing medical treatment. By signature of this Agreement the CHARTERER warrants the medical fitness of all members of the CHARTERER’s Party for the voyage contemplated by this Agreement. The CHARTERER and his party undertake to have all necessary visas and vaccinations for the countries to be visited.
CLAUSE 6 – CREW
a) The OWNER shall provide a Captain qualified in accordance with the Vessel’s flag state requirements and acceptable to the insurers of the Vessel. He shall also provide a suitably qualified and properly trained Crew. No member of the Crew shall carry or use any illegal drugs on board the Vessel or keep any firearms on board (other than those declared on the manifest) and the Captain and Crew shall comply with the laws and regulations of any country into whose waters the Vessel shall enter during the course of this Agreement.
b) It is understood that the Crew are entitled to a minimum amount of rest in accordance with the Vessel’s Code of Practice, which includes the Maritime Labour Convention (MLC) 2006.
c) The Captain and Crew are bound at all times to keep all information related to this Charter, the OWNER, the CHARTERER, and all Guests as confidential and no information is to be disclosed to any third party without prior permission of the CHARTERER in writing.
CLAUSE 7 – CAPTAIN’S AUTHORITY AND RESPONSIBILITIES
a) The OWNER shall ensure that the Captain shows the CHARTERER the same attention as if the CHARTERER were the OWNER. The Captain shall comply with all reasonable orders given to him by the CHARTERER regarding the management, operation and movement of the Vessel, wind, weather and other circumstances permitting. The Captain shall not, however, be bound to comply with any order which might, in the reasonable opinion of the Captain, result in the Vessel moving to any port or place that is not safe and proper, or might result in the CHARTERER failing to re-deliver the Vessel upon the expiration of the Charter Period, or would, in the reasonable opinion of the Captain, cause a breach of Clause 11 and/or any other clause of this Agreement. Further, without prejudice to any other remedy of the OWNER, if, in the reasonable opinion of the Captain, the CHARTERER or any of his Guests fail to observe any of the provisions in Clause 11 and if such failure continues after the Captain has given due and specific warning to the CHARTERER in writing in respect of the same, the Captain shall inform the OWNER, and the OWNER may terminate the Charter forthwith or instruct the Captain to return the Vessel to the Place of Re-Delivery and upon such return the Charter Period shall be terminated. The CHARTERER and his Guests shall disembark, the CHARTERER having settled all outstanding expenses with the Captain beforehand and the CHARTERER shall not be entitled to any refund of the Charter Fee.
b) With particular regard to the use of watersports equipment, the Captain shall have the authority to exclude the CHARTERER or any or all of his Guests from use of any particular watersports equipment if they don’t have the appropriate license when requested for a specific equipment, or they are unsafe, or behaving in an irresponsible manner, or are under the influence of alcohol, or are failing to show due concern for other persons or property when operating this equipment.
LAUSE 8 – CHARTER FEE INCLUSIONS AND EXCLUSIONS
a) The Charter Fee includes: the charter of the Vessel with all its equipment in working order; the insurance of the Vessel and crew as per Clause 13; materials for cleaning / maintenance of the Vessel; cutlery, glasses, trays, pots, pans, sheets, blankets, pillows, towels and all linen for beds and bathrooms for crew and guests; final cleaning; the crew’s wages, uniforms and food; use of tender, toys, snorkeling / floating gear, and any other entertainment / amusement device present on board. They are also included in the Charter Fee, but only when the Vessel is moored in the Base Port: a reserved parking space for 1 car with private access, locked box for guests luggage and belongings, berthing dues, waste disposal, charges for water and electricity.
b) The Charter Fee excludes: fuel for the main engines and generators; fuel for tenders and water sports equipment; food and all beverages for the Charter Party. They are also excluded, when the Vessel is not moored in the Base Port: berthing dues and other harbour charges including pilots fees, local taxes, divers fees, customs formalities and any charges for waste disposal, charges for water and electricity taken from shore. Substantially the CHARTERER will pay, at cost, for any expense not expressly included in the Charter Fee.
CLAUSE 9 – APA
APA means Advance Provisioning Allowance, it is an advance payment that the CHARTERER transfers to the OWNER / Captain to cover the costs for goods and services that guests will use during the Charter Period as: fuel, food, beverages, shoreside transport or excursions, special requirements or equipment and any other expenses not included in the Charter Fee.
The transfer of the APA is highly recommended to be done before the beginning of the Charter Period because, once on board, is not always convenient to deal with large sums of cash and because card / web payments may be not available due to the possible lack of internet connection in some areas.
The CHARTERER can, however, decide to transfer the APA once on board.
The CHARTERER shall be advised by the Captain, at intervals, as to the disbursement of the APA and shall, if the balance remaining becomes insufficient in the light of current expenditure as supported by receipts, pay via the OWNER’s account or to the Captain, a sufficient sum to maintain an adequate credit balance. The OWNER shall ensure the Captain will exercise due diligence in the expenditure of the APA. In case APA is not entirely used, at the end of the Charter Period, the remaining part will be returned to the CHARTERER.
CLAUSE 10 – BREAKDOWN OR DISABLEMENT
If, after delivery, the Vessel shall at any time be disabled by breakdown of machinery, grounding, collision or other cause so as to prevent reasonable use of the Vessel by the CHARTERER for a period between twelve (12) and forty-eight (48) consecutive hours (and the disablement has not been brought about by any act or default of the CHARTERER) the OWNER shall make a pro rata refund of the Charter Fee for the period of the disablement or, if mutually agreed, allow a pro rata extension of the Charter Period corresponding with the period of disablement. If the CHARTERER wishes to invoke this Clause he shall give immediate notice to the Captain. The CHARTERER shall not be liable for extra costs relating to the immobilisation of the Vessel but will remain liable for normal expenses during the period of disablement. In the event of the actual or constructive total loss of the Vessel or if the Vessel is disabled as aforesaid for a consecutive period of more than forty-eight (48) hours, the CHARTERER may terminate this Agreement by notice in writing to the OWNER or to the Captain if no means of communication is available. Within two (2) working days after such termination, the Charter Fee shall be repaid by the OWNER pro rata without interest for that proportion of the Charter Period out-standing after the date and time on which the loss or disablement occurred. In the event of such termination the CHARTERER may effect re-delivery by giving up possession of the Vessel where she lies. The CHARTERER shall be entitled to recover from the OWNER the reasonable cost of returning the CHARTERER and his Guests to the Place of Re-Delivery together with reasonable accommodation expenses incurred. Alternatively, after a consecutive period of disablement of more than forty-eight (48) hours and dependent on the nature and seriousness of the disablement, by mutual agreement, the CHARTERER may elect to remain on board for the duration of the Charter Period and the CHARTERER will then have no further or additional claim against the OWNER.
CLAUSE 11 – USE OF THE VESSEL
The CHARTERER shall comply, and shall ensure that the Guests comply, with the laws and regulations of any country into whose waters the Vessel shall enter during the course of this Agreement.
The CHARTERER shall ensure that no pets or other animals are brought on board the Vessel without the consent in writing of the OWNER. The CHARTERER shall ensure that the behaviour of the CHARTERER and his Guests shall not cause a nuisance to any person or bring the Vessel into disrepute. The Vessel is not to be used for commercial photo or film shoots of any nature, unless by written permission from the OWNER. The CHARTERER and Guests shall afford the Crew due respect at all times. No Crew member shall be subjected to any type of harassment, sexual or otherwise, by the CHARTERER or Guests at any time during the Charter Period. Unless otherwise agreed, smoking shall be restricted to the exterior areas of the Vessel designated by the Captain. The Captain shall promptly draw the CHARTERER’s attention to any infringement of these terms by himself or his Guests, and if such behaviour continues after this warning, the Captain shall inform the OWNER and the OWNER may, by notice in writing given to the CHARTERER, terminate this Agreement in accordance with Clause 7.
If the CHARTERER or any of the Guests shall commit any offence contrary to the laws and regulations of any country which results in any member of the Crew of the Vessel being detained, fined or imprisoned, or the Vessel being detained, arrested, seized or fined, the CHARTERER shall indemnify the OWNER against all loss, damage and expense incurred by the OWNER as a result, and the OWNER may, by notice to the CHARTERER, terminate this Agreement forthwith.
The Vessel operates a zero tolerance policy and the possession or use of any illegal drugs or any weapons (including firearms) is strictly prohibited on board the Vessel. Failure to comply shall be sufficient reason for the OWNER to terminate the Charter forthwith without refund or recourse against the OWNER.
CLAUSE 12 – NON ASSIGNMENT
The CHARTERER shall not assign this Agreement, sub-let the Vessel or part with control of the Vessel without the consent in writing of the OWNER, which consent may be on such terms as the OWNER thinks fit.
CLAUSE 13 – INSURANCE
a) Throughout the period of this Agreement the OWNER shall insure the Vessel with first-class insurers against all customary risks for a Vessel of her size, value, and type and for liabilities arising from the use by the CHARTERER and other competent persons authorised by the Captain, of personal watercraft, including jet skis, wave runners and other similar powered craft as well as windsurfers, dinghies, catamarans or other water-sports equipment carried by the Vessel. The insurance shall also cover War, Pollution and include insurance of Crew against injuries and/or Third Party liabilities incurred during the course of their employment. The CHARTERER shall remain liable for any loss, damage or liabilities arising from any act of negligence of the CHARTERER or his Guests and not recoverable by the OWNER under his insurance.
b) The cost of the insurance is included in the Charter Fee.
c) The CHARTERER should carry independent insurance for Personal Effects whilst on board or ashore and for any Medical or Accident expenses (including emergency transport evacuation) incurred.
d) The CHARTERER should be aware that neither Charterer’s Liability Insurance nor Cancellation and Curtailment Insurance are included in this Agreement.
CLAUSE 14 – SECURITY DEPOSIT
Unless otherwise provided on Page One of this Agreement, the Security Deposit shall be held by the OWNER and may be used in, or towards, discharging any damage or liability that the CHARTERER may incur under any of the provisions of this Agreement. If not required, the Security Deposit shall be refunded without interest to the CHARTERER on the first working day after the end of the Charter Period.
CLAUSE 15 – PAYMENTS TO THE OWNER
Payments are considered to be made by the CHARTERER once the funds are credited to the OWNER’S bank account. After signing this Agreement, accordingly to the terms indicated on the first page of this Agreement, the CHARTERER shall follows the following payment deadlines:
a) 3 working days to perform the first instalment/deposit; if this term will not be fulfilled, both PARTIES shall be entitled to treat this Agreement as terminated.
b) 5 working days to perform all the other instalments; if this term will not be fulfilled, OWNER shall be entitled to treat this Agreement as CANCELLED by the CHARTERER activating accordingly Clause 16 (2;a;ii;iii).
CLAUSE 16 – CANCELLATION
1) By OWNER
the CHARTERER shall be entitled to immediate repayment without interest of the full amount of all payments made by him under the terms of this Agreement and shall, in addition, be entitled to liquidated damages from the OWNER to be calculated and paid forthwith on the following scale:
a) thirty (30) days or more before commencement of the Charter Period, an amount equivalent to twenty five percent (25%) of the Charter Fee.
b) more than fourteen (14) days but less than thirty (30) days before commencement of the Charter Period, an amount equivalent to thirty five percent (35%) of the Charter Fee.
c) fourteen (14) days or less before commencement of the Charter Period, an amount equivalent to fifty percent (50%) of the Charter Fee.
2) By CHARTERER
a) Before beginning of the Charter Period
if CHARTERER give notice of cancellation of this Agreement before beginning of the Charter Period, some or all of the Charter Fee may be retained by the OWNER determined as follows:
i) if this Agreement is signed but before any instalments/deposits is paid, both PARTIES shall be entitled to treat this Agreement as terminated.
ii) if the CHARTERER paid less or equal to fifty percent (50%) of the total amount of the Charter Fee, the OWNER shall be entitled to retain that amount in full.
iii) if the CHARTERER paid more than fifty percent (50%) of the total amount of the Charter Fee, the OWNER has the duty to refund the CHARTERER for the amount exceeding the fifty percent (50%) of the Charter Fee he paid and retain the fifty percent (50%) of the Charter Fee received.
In case of cancellation before beginning of the Charter Period, the APA, Delivery / Re-delivery Fees and Security Deposit paid by the CHARTERER, will be refunded in full in any of the cases above.
b) After beginning of the Charter Period
If CHARTERER give notice of cancellation of this Agreement after the Charter Period is commenced, the OWNER shall be entitled to retain the full amount of all payments made by the CHARTERER under the terms of this Agreement. The APA eventually paid by the CHARTERER, will be returned for the part not used, as well as the Delivery / Re-delivery Fees and Security Deposit.
CLAUSE 17 – SALVAGE
During the period of the Charter, the benefits, if any, from any derelicts, salvages and towages, after paying the Crew’s proportion, and a proportion of the Charter Fee during the time when the Vessel is engaged in providing salvage assistance, and expenses during this time directly related to the salvage, shall be shared equally between the OWNER and the CHARTERER.
CLAUSE 18 – COMPLAINTS
The CHARTERER shall give notice of any complaint in the first instance to the Captain on board and note shall be taken of the time, date and nature of the complaint. The Captain shall inform the OWNER as soon as practicable.
If, however, this complaint cannot be resolved on board the Vessel then the CHARTERER shall give notice to the OWNER within twenty-four (24) hours of the event or occurrence unless it is impracticable due to failure or non-availability of communications equipment. The complaint may be made verbally in the first instance, but shall be confirmed as soon as possible in writing specifying the precise nature of the complaint.
CLAUSE 19 – DEFINITIONS
a) FORCE MAJEURE
In this Agreement ‘force majeure’ means any cause directly attributable to acts, events, non-happenings, omissions, accidents or Acts of God beyond the reasonable control of the OWNER, the Crew, or the CHARTERER (including, but not limited to, strikes, lock-outs or other labour disputes, civil commotion, riots, acts of terrorism, blockade, invasion, war, fire, explosion, sabotage, storm, collision, grounding, fog, governmental act or regulation, contaminated fuel, major mechanical or electrical breakdown beyond the Crew’s control and not caused by lack of maintenance and/or OWNER’s or Crew’s negligence). Crew changes and shipyard delays not attributable to the aforementioned causes, do not constitute force majeure.
b) OWNER, CHARTERER, PARTIES – Throughout this Agreement, the terms OWNER and CHARTERER and corresponding pronouns shall be construed to apply whether the OWNER and CHARTERER is male, female, corporate, singular or plural, as the case may be. The term PARTIES indicates OWNER and CHARTERER.
c) VAT – In this Agreement VAT means Value Added Tax levied by a member state of the European Union.
d) WORKING DAY – In this Agreement Working Day is defined as a day when the banks are open for business in the Country where the OWNER is situated.
CLAUSE 20 – ARBITRATION – LAW
This Agreement underlies the jurisdiction of the Grand-Duchy of Luxembourg. All claims and disputes arising under or relating to this Agreement that cannot be solved amicably between the PARTIES, are to be settled, in the first instance, at the Arbitration Centre of the Chamber of Commerce of the Grand-Duchy of Luxembourg and, if necessary, at the Court of the Grand-Duchy of Luxembourg.