THESE TERMS AND CONDITIONS APPLY TO THE CONTRACT FOR THE PRIVATE CHARTER OF THE YACHT “ORCADES”.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms and Conditions (the “Terms and Conditions“), the following terms shall have the following meanings unless the context requires otherwise:-
“Booking Request“: a request submitted to the Owner for a Charter in accordance with these Terms and Conditions;
“Charterer“: a person or firm who enters into a Contract for a Charter with the Owner;
“Charter“: a cruise / tour aboard the Yacht provided by the Owner;
“Charter Fee“: the fee payable by the Charterer to the Owner for a Charter;
“Charter Period“: the duration of a Charter, as agreed between the Charterer and the Owner;
“Commencement Date“: the date a Contract is formed;
“Contract“: the Contract between the Charterer and the Owner which is formed when a Charterer accepts a Quotation;
“Guests“: has the meaning in given in clause 4.1;
“Quotation“: a quotation provided by the Owner in response to a Booking Request detailing the terms upon which the Owner is prepared to carry out a Charter, including the Charter Fee;
“Safety Rules“: the health and safety rules and regulations and security requirements that apply on board the Yacht;
“Skipper“: the skipper of the Yacht;
“Owner“: Sheena Inglis trading as Orcades Cruises; and
“Yacht“: the Yacht owned by the Owner, “Orcades”.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to a party includes its personal representatives, successors and permitted assignees.
1.4 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.5 A reference to writing or written includes fax and email.
2. BOOKING AND PAYMENT
2.1 Each Booking Request must include such information as the Owner reasonably requires in order for it to provide a Quotation.
2.2 Each Quotation provided in response to a Booking Request is without obligation on the part of the Owner and the Owner has the right at all times to vary a Quotation until the same is accepted by the Charterer.
2.3 Payment to the Owner of a non-refundable deposit of 20% of the Charter Fee is required within 2 days of the Commencement Date, failing which the Contract shall terminate with immediate effect without notice to the Charterer.
2.4 Following payment of the deposit as referred to in clause 2.3, the outstanding balance of the Charter Fee must be paid to the Owner no later than 7 days prior to the commencement of the Charter, failing which the Contract shall terminate with immediate effect without notice to the Charterer, and the provisions of clause 3.2.3 shall apply.
3. ALTERATIONS & CANCELLATIONS/ REFUND POLICY
3.1 If there is any alteration to the information provided in the Booking Request, the Charterer must notify the Owner in writing. An alteration will only be accepted at the discretion of the Owner and the Owner shall be entitled to increase the Charter Fee by giving notice to the Charterer within 7 days of being notified of the alteration.
3.2 If the Charterer cancels the Contract for any reason:-
3.2.1 60 days prior to commencement of the Charter Period, the Charterer will be liable to pay to the Owner a £50 administration charge and the Charter Fee, to the extent that it has been paid, shall be refunded subject only to the deduction of such charge;
3.2.2 less than 60 days but more than 14 days prior to commencement of the Charter Period, the Charterer will be liable to pay to the Owner 50% of the Charter Fee (but only to the extent that the amount of such Charter Fee is not recovered by the charter of the Yacht to another party during the cancelled Charter Period);
3.2.3 less than 14 days prior to commencement of the Charter Period, the Charterer will be liable to pay to the Owner the Charter Fee (but only to the extent that the amount of such Charter Fee is not recovered by the charter of the Yacht to another party during the cancelled Charter Period).
4. USE OF YACHT
4.1 The Charterer shall be responsible for the behaviour of all passengers whom it has arranged shall travel on the Charter (hereinafter the “Guests“) and shall ensure that all Guests are aware of these Terms and Conditions.
4.2 The Owner (or a crew member) shall be entitled to undertake security checks of the Guests and their baggage / other belongings prior to their embarkation aboard the Yacht.
4.3 The Charterer and his Guests must supply their own catering for the duration of a Charter. All catering equipment taken aboard must be removed at the end of the Charter. The Owner will not be responsible for any equipment damaged on board or left for collection at a later date.
4.4 No more than 12 Guests shall at any time be permitted to be on board the Yacht and no more than 6 Guests shall be permitted to sleep on board the Yacht. At the sole discretion of the Owner, a reasonable number of visitors whilst the Yacht is securely docked shall be permitted on board.
4.5 The Guests shall comply with the Safety Rules (which shall be notified to the Guests on or before embarkation) and any reasonable directions and orders which may be given from time to time by the crew of the Yacht.
4.6 The Guests shall not cause a nuisance to any person or bring the Yacht into disrepute. The Guests shall afford the crew of the Yacht due respect at all times. The Skipper may in his absolute discretion refuse passage to any person who is or who, in his opinion, may become disruptive, or to land or disembark any such person at the first opportunity, and the Owner will not be responsible for any additional costs incurred as a consequence nor for returning such person to the point of embarkation.
4.7 No pets or other animals shall be brought on board the Yacht without the consent in writing of the Owner.
4.8 Unless otherwise agreed, smoking shall be restricted to the exterior areas of the Yacht designated by the Owner.
4.9 Without prejudice to any other remedy of the Owner, if, in the reasonable opinion of the Skipper, the Charterer or any of his Guests fail to observe any of the provisions in clause 4 and if such failure continues after the Skipper has given due and specific warning to the Charterer in respect of the same, the Skipper shall inform the Owner, and the Owner may terminate the Charter forthwith or instruct the Skipper to return the Yacht to port and upon such return the Charter Period shall be terminated. The Charterer and his Guests shall disembark and the Charterer shall not be entitled to any refund of the Charter Fee.
4.10 In the event that the performance of the Charter is delayed due to any fault on the part of the Charterer or any Guest, the Charterer will be responsible for meeting all additional costs, losses and expenses incurred by the Owner as a result thereof and shall indemnify the Owner within 7 days of being notified of the alteration.
4.11 If late Guests delay the departure of the Charter the Yacht will nonetheless conclude at the scheduled time. If Guests do not disembark promptly at the end of the Charter Period, the Owner reserves the right to invoice the Charterer for additional time incurred at the rate of £50 per hour.
5. ADVERSE WEATHER CONDITIONS
5.1 All vessels sail subject to weather conditions. Whilst the Owner shall use reasonable endeavours to provide the Charter which is contracted for, the Owner (or, if appropriate, the Skipper as the Owner’s representative) shall be entitled to vary the Charter if in the Owner’s (or the Skipper’s) absolute discretion it is required by the weather conditions. The Owner (or the Skipper) shall comply with all reasonable requests made by the Charterer regarding such a variation, but the Owner (or the Skipper) shall not be bound to comply with any request which the Owner (or the Skipper) in its (or his) absolute discretion considers might result in the Yacht taking any course or moving to any place which is not safe. In the event the Charter is varied pursuant to this clause, the Owner shall not be liable to the Charterer for any refund of the Charter Fee.
5.2 The Owner accepts no responsibility in the event that the Charter has to be cancelled in its entirety because of adverse weather conditions. Where possible, 48 hours’ notice will be given if adverse weather is likely to result in the cancellation of the Charter in its entirety and in such circumstances the Charter Fee will be refunded if an alternative Charter Period cannot be agreed.
6.1 Any complaint or problem arising during a Charter should be raised with a crew member on board the Yacht so that where possible this may be satisfactorily addressed immediately.
6.2 In the event of any complaint or problem arising before or after a Charter, the Charterer should contact the Owner in writing at the address given in clause 1.1 above.
7. WARRANTIES AND LIABILITY
7.1 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract. Nothing in the Contract limits or excludes the liability of the Owner for death or personal injury resulting from negligence or for any damage or liability incurred by the Charterer or any of his Guests as a result of fraud or fraudulent misrepresentation by the Owner. Subject to that, the liability of the Owner is excluded to the fullest extent permitted by law and the Owner shall not be liable to the Charterer or any of his Guests for any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
7.2 Notwithstanding anything contained in the Contract, the Owner’s liability to the Charterer in respect of the Contract whether for breach of contract or delict (including negligence or breach of statutory duty) or otherwise shall be limited to the Charter Fee (net of VAT and other duties and taxes).
8. EVENTS BEYOND THE OWNER’S CONTROL
8.1 The Owner shall not be liable to the Charterer for any refund of the Charter Fee (unless expressly provided for in these Terms and Conditions) nor for any loss or damage suffered by the Charterer or any of his Guests as a result of Owner’s failure or delay in performing the Charter where such failure or delay is caused by any occurrence beyond the reasonable control of Owner including: Act of God, explosion, flood, fire or accident; sabotage; acts or requirements of any kind of any governmental, parliamentary or local authority; strikes, lockouts, or other industrial actions or trade disputes; and power failure or breakdown in machinery.
9.1 Without prejudice to any other right of the Owner under these Terms and Conditions, if the Charterer shall offer to make any arrangement or composition with creditors or become apparently insolvent or be made bankrupt or if any petition for bankruptcy shall be presented and made against him or, in the event that the Charterer is a limited company, a resolution or petition to wind up such company (other than for the purposes of amalgamation or reconstruction) shall be passed or presented or if a receiver or administrator or liquidator of such company’s undertaking, property or assets or any part thereof shall be appointed, the Owner (without prejudice to any claim or right that it may otherwise make or exercise against the Charterer) shall have the right to terminate the Contract without notice to the Charterer.
10.1 All notices shall be sent either by email, facsimile or first class post to the email address, facsimile number or address of each party set out in the Booking Request or Quotation (as the case may be) or such other email address, facsimile number or address as may be notified by either party to the other from time to time. Emails and facsimile notices will be deemed to be received immediately. First class post notices will be deemed to be received 48 hours after posting.
11. DATA PROTECTION
12.1 The Owner may assign its right, title, benefit and interest in and to a Contract without the Charterer’s consent. A Charterer may not assign its right, title, benefit and interest in and to a Contract without the Owner’s consent.
13. LAW AND JURISDICTION
13.1 The Contract shall be governed by and interpreted in accordance with Scots Law and the Scottish Courts shall have jurisdiction to resolve any disputes between the Owner and the Charterer.