BAREBOAT CHARTER TERMS AND CONDITIONS
PARADISE and the CHARTERER (together, the “Parties”, and each a “Party”) hereby agree:
Part A: Charter Agreement
Agreement. These Bareboat Charter Terms and Conditions (the “Terms”) form part of the bareboat charter agreement (the “Agreement”) being entered into between the parties identified on the information sheet (“Information Sheet”) to which these Terms are attached.
Agency. Paradise Yacht Charters Ltd. (“PARADISE”) is a broker of yacht charters, is not the owner of the Vessel, and is authorized by the OWNER to enter into this Agreement solely as agent for the OWNER. Any reference in these Terms to PARADISE is a reference to PARADISE in its capacity as agent of the OWNER and not in PARADISE’s own capacity.
Charter. PARADISE hereby charters the Vessel to the CHARTERER on a bareboat (demise) basis pursuant to and in accordance with the terms and conditions set out in this Agreement, for the duration set out on the Information Sheet.
Part B: Money
Charter Hire. CHARTERER shall pay to PARADISE all monies set out in Information Sheet at or before the applicable dates set out in the Information Sheet. All monies are payable in cleared funds.
Late Payment. Should the CHARTERER fail to pay any amount due under this Agreement after written notice that payment is due, PARADISE shall be entitled to treat this Agreement as having been repudiated by the CHARTERER and to retain all payments made to date and shall remain entitled to all payments due hereunder had this Agreement not been repudiated.
Running Expenses. The CHARTERER shall accept the Vessel delivered as described herein and shall pay for all running expenses (including without limitation fuel, moorage, water, provisions, and holding tank pump out and disposal) during the term of the charter.
Taxes. Any and all taxes imposed on this charter are the responsibility of the CHARTERER, and the CHARTERER shall indemnify and hold harmless the OWNER and PARADISE from any liability for such taxes, including associated penalties and interest.
Security Deposit. The Security Deposit to be paid by the CHARTERER shall be held by PARADISE 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 promptly after settlement of all outstanding queries, differences and disputes.
Currency. All references to currency in this Agreement are to Canadian dollars, unless otherwise stated.
Part C: Beginning and End of the Charter
Delivery. PARADISE shall deliver the Vessel at the time and place as specified in the Information Sheet, in full commission and proper working order, exclusive of master or crew, outfitted as a Vessel of her size, type and accommodations; with full equipment inclusive of that required by law, and fully furnished, including all necessary operating and maintenance stores and supplies, laundry of ship’s linens, and seaworthy, clean and in good condition throughout and ready for service. PARADISE may change the place of delivery upon notice to the CHARTERER.
Inspection. PARADISE will conduct an inspection of the Vessel interior and exterior at delivery and redelivery to ascertain condition under the charter and any damage thereto. The inspection will follow a structured format including checklists and photographs to record the condition of the Vessel.
Delay in Delivery. PARADISE shall allow demurrage pro rata to the CHARTERER for any delay in delivery. Should it be impossible for PARADISE to deliver the Vessel within one-tenth of the charter period as a result of force majeure (as defined in section 20), the CHARTERER may cancel this Agreement prior to taking delivery of the Vessel. In such case PARADISE shall immediately refund to the CHARTERER all charter hire paid to PARADISE, and PARADISE shall have no further liability to CHARTERER whatsoever.
Re-delivery. The CHARTERER at the expiration of this charter shall re-deliver the Vessel, her equipment and furnishings, free and clear of any liens or indebtedness incurred for the CHARTERER’s account, to PARADISE, at the time and place specified in the Information Sheet, in as good condition as when delivery was taken, ordinary wear and tear excepted. The CHARTERER shall re-deliver the Vessel with the fuel and water tanks full (or at the same level as at delivery, if this was ascertained during the inspection) and the holding tanks empty.
Delay in Re-Delivery and Indemnification. If the Vessel is not re-delivered within the charter period for reasons attributable to the CHARTERER, in whole or in part, then the CHARTERER shall pay to PARADISE as liquidated damages a sum equal to the charter hire divided by the number of days (period of 24 consecutive hours, or portion thereof) comprised in the charter period, subject to PARADISE’s right to recover further additional loss or damages, if any, sustained as a result of the delay in re-delivery. The CHARTERER shall indemnify and hold harmless the OWNER and PARADISE against and from any and all liability to third parties for loss or damage attributable to the CHARTERER’s acts or omissions.
If the CHARTERER elects to re-deliver the VESSEL before the expiration of the charter for reasons not attributable to PARADISE, the CHARTERER shall not be entitled to any return of any charter hire.
Delay by Force Majeure. If re-delivery of the Vessel is delayed by reason of force majeure (as defined in section 20), re-delivery shall be effected as soon as possible thereafter and the Agreement shall remain in effect with no penalty against the CHARTERER.
Part D: Use During the Charter
Use and Restrictions of Use. The CHARTERER represents and warrants that the Vessel shall be employed exclusively as a pleasure Vessel for the sole and proper use of the CHARTERER and his or her crew, family, guests, invitees, employees and servants, during this charter period, and shall be used without remuneration or object of profit; and that the Vessel shall not transport merchandise or carry passengers for hire, or engage in any trade nor in any way violate the laws of British Columbia or Canada (including, without limitation, the revenue laws of Canada) or any other Government within the jurisdiction of which the Vessel may be at any time, and shall comply with the law in all respects. Without limiting the foregoing, the Charterer shall not use the Vessel for any non-pleasure or commercial purposes whatsoever.
Children. The CHARTERER shall ensure that any children on board the Vessel shall be supervised by an adult member of the charter party at all times.
Nuissance. The CHARTERER shall ensure that the behavior of the charter party shall not cause a nuisance to any person or bring the Vessel, PARADISE, or the OWNER into disrepute. The CHARTERER shall be liable for fines, penalties, damages and forfeitures as a result of negligence or intentional acts of the CHARTERER or his or her crew, family, guests, invitees, employees or servants, and the CHARTERER shall indemnify, hold harmless and defend the Releasees (defined below) for such acts.
Crew. The CHARTERER acknowledges and agrees that the CHARTERER exclusively is responsible for the employment, engagement, and payment of the master and crew and any other personnel used by the CHARTERER on or in connection with the Vessel under this charter.
Illegality. The use, transport or possession of illegal drugs or narcotics, including marijuana, or of any other contraband, or the participation of any other unlawful activity, the transport of illegal aliens, is strictly prohibited and constitutes a breach of the Agreement and shall be cause for immediate termination of the charter without refund of the charter hire and any additional payments made by the CHARTERER and with no recourse against PARADISE.
Weapons. It is specifically understood that the possession or use of any weapons (including particularly firearms) is strictly prohibited aboard and failure to comply shall be cause for immediate termination of the charter without refund of the charter hire and any additional payments made by the CHARTERER with no recourse against PARADISE.
Cruising Range. The Vessel may be operated only in the waters of British Columbia, Canada and shall not enter or be operated in US waters.
Adverse Conditions. The CHARTERER shall cause the Vessel at all times to be operated in a safe manner, having due regard for actual and potential adverse weather and sea conditions. The CHARTERER expressly acknowledges and agrees that there are uncertainties and risks inherent in the operation of the Vessel, and that prudent operation of the Vessel may include delays, alterations of schedule and rerouting, and that under no circumstance will the Releasees (defined below) be liable for any adverse weather or sea conditions or loss of use or enjoyment of the Vessel suffered by the CHARTERER or his or her crew, family, guests, invitees, employees or servants.
Part E: Breakdowns During the Charter
Breakdown or Disablement after Delivery. If the Vessel, after delivery, sustains breakdown of machinery or is disabled or damaged by fire, grounding, collision or causes other than force majeure so as to prevent the CHARTERER’s use of the VESSEL for a period of not less than one-tenth of the charter period, the same not being brought about by any act or default of the CHARTERER, PARADISE shall make a pro rata return of the charter hire to the CHARTERER of such period in excess of one-tenth of the charter period the Vessel is disabled or unfit for use. Provided, however, that in case the Vessel is lost or the damage is so extensive that the Vessel cannot be or is not repaired within one-tenth of the charter period, the same not being brought about by any acts or defaults of the CHARTERER, then charter hire shall be abated pro rata and charter hire paid in advance shall be rebated pro rata from the time of such occurrence, and the CHARTERER shall have the right to terminate this charter.
Repairs. In the event of a breakdown by the Vessel after delivery as described by the previous section, the CHARTERER shall immediately notify PARADISE, and the CHARTERER shall not authorize or effect any repairs to the Vessel except with PARADISE’s prior consent, provided however that the CHARTERER may effect emergency repairs to protect and maintain the integrity and safety of the Vessel in which case the CHARTERER shall notify PARADISE forthwith of any such repairs.
No Offline. Other than for the matters specified in sections 17 [Breakdown or Disablement after Delivery] or 20 [Force Majeure], the CHARTERER may not claim any offline from any cause whatsoever.
Force Majeure. In this Agreement “force majeure” is defined as any cause directly attributable to acts, events, nonhappenings, omissions, accidents or Acts of God, beyond the reasonable control of the OWNER, PARADISE or the CHARTERER (including, but not limited to, strikes, lockouts or other labor disputes, civil commotion, riots, blockade, invasion, war, fire, explosion, sabotage, storm, collision, grounding, fog, governmental act or regulation, major mechanical or electrical breakdown beyond the crew’s control and not caused by the negligence of PARADISE or the CHARTERER).
Part F: Insurance
Insurance. PARADISE has obtained confirmation from the OWNER that the Vessel is insured against fire, marine and collision risks, hazards to the voyage, including all engine, hull and Vessel equipment, for any and all casualty and loss or damage that may occur to or be suffered by the Vessel for the full term of the charter including any proper extension thereof. Said policies of insurance are held by the OWNER and for the benefit of the CHARTERER.
Deductibles. The CHARTERER shall be responsible to pay any deductible for any insurance claim arising in connection with the charter.
Not included. Cancellation insurance and curtailment insurance are not included under the terms of this Agreement.
Coverage. The interest of the CHARTERER may not be covered, or fully covered, under the liability portion of the Vessel’s insurance policy.
Additional Coverage. The CHARTERER should determine whether any such insurance coverage and applicable deductibles are adequate and appropriate for the CHARTERER’s purposes and, if necessary, arrange for additional coverage prior to the start of the charter period. If the CHARTERER chooses to arrange for separate or supplemental insurance in addition to any insurance provided by the OWNER, the same may be arranged at additional cost to the CHARTERER. The CHARTERER need to purchase supplementary insurance coverage to comply with Canadian (Pacific) Protection and Indemnity Clauses 2007. There is a $2,500 Deductible on any one accident or occurrence and the maximun coverage for protection & indemnity is $2,000,000.00 CAD.
Part G: Cancellation
Cancellation by the CHARTERER. In the event the CHARTERER cancels the charter for any reason whatsoever, the charter hire will be refundable as follows:
For cancellations received by PARADISE more than 90 days prior to the first day of the charter period, a full refund of charter hire monies paid, less an administration fee of ten (10) percent of the total vessel charter fee payable under the charter.
For cancellations received by PARADISE more than 60 but less than 90 days prior to the first day of the charter period, a full refund of charter hire monies paid, less an administration fee of 30 percent of the total Vessel charter fee payable under the charter. For cancellations received by PARADISE less than 60 days prior to the first day of the charter period, no refund is available.
The parties agree that the above amounts retained by PARADISE are not a penalty but are a reasonable estimate of the damages incurred by PARADISE and the OWNER as a direct result of the CHARTERER’s cancellation.
Cancellation by PARADISE. If prior to the start date of the charter period, the Agreement is cancelled in writing by PARADISE, all charter hire monies paid shall be refunded in full forthwith to the CHARTERER and PARADISE shall have no further liability whatsoever to the CHARTERER.
Unavailability of Vessel. If prior to the start date of the charter period, the Vessel becomes unavailable for any reason whatsoever, PARADISE shall make commercially reasonable efforts to identify and propose a substitute vessel of similar size and features. If the CHARTERER accepts the proposed substitute vessel, then this charter shall be terminated and any charter hire amounts paid under this charter shall be transferred to the new charter between the CHARTERER and PARADISE for the substitute vessel. If the CHARTERER does not accept the proposed substitute, then this Agreement shall be cancelled in accordance with section 23.
Sale of the Vessel. Upon becoming aware of the OWNER agreeing to sell the Vessel prior to or during the charter, PARADISE shall immediately give notice of such sale in writing to the CHARTERER. PARADISE shall request the OWNER to arrange for the buyer to take over this Agreement and perform the charter on the same terms and conditions either by assignment of this Agreement or way of a new charter agreement between the CHARTERER and the buyer. If the charter is to be taken over by the buyer on the same terms and conditions there shall be no penalty against PARADISE or the OWNER and no additional commissions shall be due. In such case neither PARADISE nor the OWNER shall have any further liability whatsoever to the CHARTERER.
Part H: Legal and General
No Liens. The CHARTERER, and the CHARTERER’s agents and employees including master and crew, have no right or power to permit or suffer the creation of any maritime liens against the Vessel, except for crew’s wages and salvage. The CHARTERER agrees to indemnify the OWNER and PARADISE for any charges or losses in connection therewith, including reasonable attorneys’ fees.
Release and Indemnity. The CHARTERER hereby releases and waives, and shall defend, hold harmless and indemnify the OWNER and PARADISE and their respective directors, officers, employees, agents and representatives (collectively, the “Releasees”) from, any claims of any nature whatsoever against the Releasees arising out of or in any way related to any act or neglect of the CHARTERER in relation to the Vessel, or arising out of or during, or related to, the possession, use, or operation of the Vessel by the CHARTERER, whether such claims are made by the CHARTERER or his or her crew, family, guests, invitees, employees or servants, provided however that the foregoing release and indemnity does not apply to any claim arising directly from a defect in the Vessel. Notwithstanding anything else in this Agreement, PARADISE and each of the Releasees may claim the benefit of any indemnity in this Agreement in their own name and in their own capacity.
Limitation of Liability. The CHARTERER expressly waives all claims for direct or consequential economic loss resulting from any delay, termination or cancellation beyond the return of any payments made by the CHARTERER; and in no circumstances whatsoever shall the Releasees be liable or responsible for any other direct or indirect or consequential losses whatsoever.
Confidentiality. The parties shall keep the terms and conditions of this Agreement in strict confidence and therefore shall disclose no information concerning this Agreement to any third party, except as required by law.
Law and Arbitration. This Agreement shall be construed in accordance with the laws of British Columbia and of Canada applicable therein (without application of any principles of conflict of laws that may cause any other laws to apply). Any controversy or claim arising out of or relating to this Agreement, or with the breach thereof, shall be settled by arbitration in accordance with the rules of the Vancouver Maritime Arbitration Association, such arbitration to be held in Vancouver, British Columbia, Canada, unless another place is mutually agreed upon. Judgement upon any reward reached by the arbitrator(s) may be entered in any court having jurisdiction thereof.
Entire Agreement and Amendments. This Agreement together with any addendums, amendments, and exhibits hereto constitutes the entire agreement among the Parties and it supersedes any prior agreement or understanding among them, oral or written, all of which are hereby canceled. This Agreement may not be modified or amended other than by a written document signed by both Parties.
Binding effect. All of the terms and provisions of this Agreement, whether expressed or not shall be binding upon, inure to the benefit of, and be enforceable by the Parties and their representatives, heirs, and permitted assigns. Any rights given or duties imposed upon the estate of a deceased party shall inure to the benefit of and be binding upon the fiduciary of such decedent’s estate in his fiduciary capacity.
No Assignment. The CHARTERER agrees not to assign this Agreement or sub-charter the Vessel without the prior written consent of PARADISE.
Time. Time is of the essence of this Agreement.
Capitalized Terms. In this Agreement, capitalized terms have the meaning ascribed to them in the Information Sheet or in these Terms.
Counterparts. This Agreement may be executed in one or more counterparts and delivered by facsimile, PDF, or other electronic means, each of which will be deemed to be an original and which together will constitute one and the same instrument.
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No refund will be issued after the payment is complete. The security deposit will be issued to the charterer once the inspection is finished after boat’s return.