- "Skipper a Clipper" shall mean Skipper a Clipper Pty Ltd T/A Skipper A Clipper & EOS Yacht Charter and its successors and assigns.
- "Client" shall mean the Client or any person acting on behalf of and with the authority of the Client.
- "Guarantor" means that person (or persons), or entity who agrees herein to be liable for the debts of the Client if a Limited Liability Client on a principal debtor basis.
- "Vessel" shall mean any Vessel supplied by Skipper a Clipper to the Client for charter (and where the context so permits shall include any supply of Services as hereinafter defined).
- "Services" shall mean all services supplied by Skipper a Clipper to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Services as defined supra).
- "Fee" shall mean the cost of the Vessel as agreed between Skipper a Clipper and the Client subject to clause 4 of this contract.
- The Client named in the yacht charter contract is deemed to be responsible for the Vessel. Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Fee.
- Any instructions received by Skipper a Clipper from the Client for the supply of Vessel and/or the Client's acceptance of Services and/or Vessel supplied by Skipper a Clipper shall constitute acceptance of the terms and conditions contained herein.
- Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of Skipper a Clipper.
- None of Skipper a Clipper agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of Skipper a Clipper in writing nor is Skipper a Clipper bound by any such unauthorised statements.
- The Vessel and/or Services are as described on the invoices, yacht charter contract, or any other commencement forms as provided by Skipper a Clipper to the Client.
Fee And Payment
- At Skipper a Clipper sole discretion;
- The Fee shall be as indicated on invoices provided by Skipper a Clipper to the Client in respect of Vessel supplied; or
- The Fee shall be Skipper a Clipper current Fee at the date of delivery of the Vessel according to Skipper a Clipper current Fee list.
- The Client shall deposit with Skipper a Clipper a security bond, the amount of which will be stipulated at the time of the order of the Vessel and shall become immediately due and payable. The security bond will be returned to the Client no earlier than seven (7) days after the charter. The security bond will be applied, as provided for in this contract, and (without limiting the generality of the foregoing) to demurrage, the repair of any damage or loss of equipment not otherwise covered by insurance.
- At Skipper a Clipper sole discretion a non-refundable charter deposit may be required. The deposit amount or percentage of the Fee will be stipulated at the time of booking the Vessel and shall become immediately due and payable.
- Time for payment for the charter of the Vessel shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be due seven (7) days prior to delivery of the Vessel.
- Payment will be made by cheque (at least ten (10) days prior to delivery of the Vessel), or by bank cheque, or by credit card (plus any charges that maybe applicable), or by direct credit, or by any other method as agreed to between the Client and Skipper a Clipper.
- The Fee shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by Skipper a Clipper.
- Skipper a Clipper may cancel these terms and conditions or cancel delivery of Vessel at any time before the Vessel is delivered by giving written notice. Skipper a Clipper shall not be liable for any loss or damage whatever arising from such cancellation.
- In the even that the Client cancels the booking more than seven (7) days prior to delivery, the charter deposit will be forfeited. In the event that the Client cancels the booking less than seven (7) days prior to delivery, the full charter fee will be forfeited. Where possible, Skipper a Clipper will arrange alternative dates for the charter.
- Skipper a Clipper reserves the right to postpone or cancel a charter in the event of bad weather. Under these circumstances, the whole charter fee will be refunded.
- In the event that through loss or damage the Vessel to be chartered by the Client is not available, or an alternative is not suitable to the Client, Skipper a Clipper will refund the whole charter fee. Skipper a Clipper will not be liable for any associated expense incurred by Client in these circumstances.
Delivery Of Vessel
- Skipper a Clipper will deliver the named Vessel to the embarkation point in full commission, carrying all equipment required by law, and in a clean and in good condition. The charter period is between the times set out in this charter contract.
- If the Client arrives after the time for the commencement of the charter, without the express agreement by Skipper a Clipper, a charge of $100.00 per hour or part thereof may apply and shall become immediately due and payable.
- The charter briefing, which is conducted to familiarise the Client with the Vessel and its equipment and safety procedures shall form part of the charter period.
- The Client must be present in person for the charter briefing and handover of the Vessel.
- The Client accepts the Vessel with the items set out on the Vessel's inventory.
- Skipper a Clipper reserves the right to refuse delivery of the Vessel should the Client (in the opinion of Skipper a Clipper) be under the influence of alcohol or drugs or if the level of Client's competency is not established.
- The costs of carriage and any insurance which the Client reasonably directs Skipper a Clipper to incur shall be reimbursed by the Client (without any set-off or other withholding whatever) and shall be due on the date for payment of the Fee. The carrier shall be deemed to be the Client's agent.
- The failure of Skipper a Clipper to deliver shall not entitle either party to treat this contract as repudiated.
- Skipper a Clipper shall not be liable for any loss or damage whatever due to failure by Skipper a Clipper to deliver the Vessel (or any of them) promptly or at all.
- The Client shall not carry more than the number of passengers on board as specified in this contract.
- The Client agrees to use the Vessel for pleasure and entertainment purposes and not for uses associated with a commercial venture or for the transportation of merchandise or for any illegal purposes.
- The Client agrees not to use the Vessel to carry inflammable, explosive or corrosive materials, of any animal or pet without Skipper a Clipper written consent;
- The Vessel shall not be moved or tampered with by any person under the influence of alcohol or drugs.
- In the event that the Vessel is chartered with a skipper and/or crew who are the servants or agents of Skipper a Clipper, the Client shall acknowledge the direction, requirements and regulations imposed upon the Client by the skipper and/or crew during the charter period. The Client shall not demand or require any action on the part of the skipper and/or crew, which may lead to endangering the Vessel or its passengers. The decisions of the skipper in this regard shall be treated as final and absolute.
- The Client must contact Skipper a Clipper once a day by telephone or radio.
- Call outs to the Vessel whilst on charter will be charged to the Client except in the incidence of negligence on behalf of Skipper a Clipper.
- The Charter shall limit the use of this Vessel to the areas that are permitted by the Waterways Authority of New South Wales.
- Unless otherwise authorised by Skipper a Clipper, the Client shall be anchored between 5.30pm and sunrise.
- The Client shall not anchor in any restricted area, in an area which contains mooring, or in or adjacent to a navigational channel.
- The Client shall not come alongside wharves or jetties or other Vessels without the express prior permission of Skipper a Clipper.
- At all times, the Client shall observe the International Regulations for Preventing Collisions at Sea and local regulations applicable to the area. The Client shall observe the courtesies extended to Vessels engaged in racing.
- The Client shall return the Vessel to Skipper a Clipper no later than the time set out in this contract. If the Vessel is delivered after this, a charge of $100.00 per hour or part thereof will apply and shall become immediately due and payable.
- The Client shall return the Vessel in the same condition as the Vessel was delivered at the commencement of the charter. An optional cleaning service may be arranged and paid for prior to the charter, the fee for which is $100.00. If, in the opinion of Skipper a Clipper, the Vessel is returned in an extraordinarily dirty condition, a cleaning surcharge will apply and shall become immediately due and payable.
- The cost associated with any loss or damage, which occurs on the Vessel during the charter, may be deducted against the security bond.
- If the toilet becomes blocked during the charter, a $230.00 charge will be applied accordingly and shall become immediately due and payable.
- If any part of the Vessels equipment is missing damaged or lost, over and above the cumulative value of $20.00 charges will apply.
- The Client represents and warrants that he (or the nominated skipper as set out in this contract) is experienced and competent in handling and operating a Vessel similar to the Vessel being chartered and that he has a practical knowledge of seamanship, pilotage and the International Regulations for Preventing Collisions at Sea. A summary of the nominated skipper's experience forms part of this contract.
- Skipper a Clipper reserves the right to require that a skipper accompany the Client for part or all of the charter period. The expense associated with the skipper shall be borne by the Client.
- The Client agrees that no person other than the Client is authorised to skipper the Vessel without written consent of Skipper a Clipper (skippering of the Vessel by an unauthorised person voids all insurance coverage in relation to the Vessel and the operation of it).
- The Vessel is insured by Skipper a Clipper against fire, marine and collision risks with protection and indemnity coverage in favour of the Client as stated in the insurance policy for the charter period, only if the Vessel is operated in accordance with this contract. In the event that this contract is breached, Skipper a Clipper may deduct any excess in connection with said policy against the security bond and seek further remuneration where necessary.
- In the event of loss, accident or breakdown during the charter period, the Client shall give immediate notice to Skipper a Clipper. The Client shall not (except to the extent necessary to avert or minimise the loss of the Vessel) attempt repairs without the express authorisation of Skipper a Clipper. The Client shall be responsible for the consequences of any unauthorised repairs.
- The Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of Skipper a Clipper and the Client acknowledges that he charters the Vessel relying solely upon his own skill and judgement.
The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
- Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
Default & Consequences Of Default
- Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 8.0% per calendar month and shall accrue at such a rate after as well as before any judgement.
- If the Client defaults in payment of any invoice when due, the Client shall indemnify Skipper a Clipper from and against all Skipper a Clipper costs and disbursements including on a solicitor and own Client basis and in addition all of Skipper a Clipper nominees costs of collection.
- Without prejudice to any other remedies Skipper a Clipper may have, if at any time the Client is in breach of any obligation (including those relating to payment), Skipper a Clipper may suspend or terminate the supply of Vessel to the Client and any of its other obligations under the terms and conditions. Skipper a Clipper will not be liable to the Client for any loss or damage the Client suffers because Skipper a Clipper exercised its rights under this clause.
- If any account remains unpaid at the end of the second month after supply of the Vessel or services the following shall apply: An immediate amount of the greater of $50.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.
- In the event that:
- any money payable to Skipper a Clipper becomes overdue, or in Skipper a Clipper opinion the Client will be unable to meet its payments as they fall due; or
- the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client;
- then without prejudice to Skipper a Clipper other remedies at law
- Skipper a Clipper shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies; and all amounts owing to Skipper a Clipper shall, whether or not due for payment, immediately become payable.
Security And Charge
- Notwithstanding anything to the contrary contained herein or any other rights which Skipper a Clipper may have howsoever:
- Where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Skipper a Clipper or Skipper a Clipper nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client and/or the Guarantor acknowledge and agree that Skipper a Clipper (or Skipper a Clipper nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
- Should Skipper a Clipper elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Skipper a Clipper from and against all Skipper a Clipper costs and disbursements including legal costs on a solicitor and own Client basis.
- To give effect to the provisions of clause [12.1 (a) and (b)] inclusive hereof the Client and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint Skipper a Clipper or Skipper a Clipper nominee as the Client's and/or Guarantor's true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as Skipper a Clipper and/or Skipper a Clipper nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Client and/or the Guarantor in any land, realty or asset in favour of Skipper a Clipper and in the Client's and/or Guarantor's name as may be necessary to secure the said Client's and/or Guarantor's obligations and indebtedness to Skipper a Clipper and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in Skipper a Clipper absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
Privacy Act 1988
- The Client and/or the Guarantor/s agree for Skipper a Clipper to obtain from a credit-reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by Skipper a Clipper.
- The Client and/or the Guarantor/s agree that Skipper a Clipper may exchange information about Client and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
- To assess an application by Client;
- To notify other credit providers of a default by the Client;
- To exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and
- To assess the credit worthiness of Client and/or Guarantor/s.
- The Client consents to Skipper a Clipper being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
- The Client agrees that Personal Data provided may be used and retained by Skipper a Clipper for the following purposes and for other purposes as shall be agreed between the Client and Skipper a Clipper or required by law from time to time:
- provision of charter Services;
- marketing of charter Services by Skipper a Clipper, its agents or distributors in relation to the charter Services;
- analysing, verifying and/or checking the Client's credit, payment and/or status in relation to provision of charter Services;
- processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and
- enabling the daily operation of Client's account and/or the collection of amounts outstanding in the Client's account in relation to the charter Services.
- Skipper a Clipper may give, information about the Client to a credit reporting agency for the following purposes:
- to obtain a consumer credit report about the Client; and or
- allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
The Client agrees to pay to Skipper a Clipper on demand (after deducting any prepayments made by the Client to Skipper a Clipper) the following amounts â€“
- The agreed charter Fee for the Vessel during the charter period; and
- The damage excess fee; and
- Fuel supplied for the Vessel by Skipper a Clipper; and
- All taxes, stamp duties, charges, levies and tolls payable in relation to the rental and use of the Vessel; and
- Any charges incurred by the Skipper a Clipper in returning the Vessel to that place where the Client first took possession of the Vessel; and
- The cost of rectifying all damage to the Vessel not covered by insurance; and
- Any other fees or charges set out in the charter contract.
- The Client agrees that Skipper a Clipper is authorised to complete any credit card documentation on behalf of the Client for the purposes of the Client making payment to Skipper a Clipper;
- To notify Skipper a Clipper immediately of any apparent mechanical defect or failure and to refrain from continuing to drive the Vessel after such mechanical defect has become apparent;
- To provide full details to Skipper a Clipper of any accident in which the Vessel is involved and to fully co-operate with Skipper a Clipper in providing assistance in any litigation or investigation in relation to such accident;
- That the Client will ensure that â€“
- (i) The Client will cease to operate the Vessel when any mechanical defect becomes apparent. The Client acknowledges and agrees that should the Client unreasonably continue to operate the Vessel after a mechanical defect has become apparent, any damage to the Vessel thereby caused shall be the responsibility of the Client and the Client shall pay to the owner the cost of rectifying any such damage.
- Not to arrange or undertake any repairs to the Vessel or salvage without the authority of Skipper a Clipper except to the extent that the repairs or salvage are necessary to prevent further damage to the Vessel or to other property, and the Client shall ensure that no person interferes with any part of the engine or systems of the Vessel without the authority of the owner, except in an emergency.
- To pay any fines for any offences committed by the Client and to reimburse Skipper a Clipper for any fines paid or legal costs incurred by Skipper a Clipper arising out of the Client's possession of the Vessel;
- The Client acknowledges that the insurance and security bond paid by the Client are applicable to the first claim made by the Client against such insurance, and to the first incident of damage sustained to the Vessel. If the Client seeks to continue to charter the Vessel after damage has been sustained to it, the Client shall be liable to pay Skipper a Clipper such additional sum for insurance and such additional security bond as shall be calculated by Skipper a Clipper provided that same shall be consistent with the sums paid by the Client for insurance and for the security bond at the commencement of the Agreement. Any such sums or costs shall become immediately due and payable.
- If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
- All Services/Vessels supplied by Skipper a Clipper are subject to the laws of New South Wales and Skipper a Clipper takes no responsibility for changes in the law which affect the Services/Vessel supplied.
- The headings herein are for the convenience of reference.
- References to the Client include his/her executors and administrators.
- Skipper a Clipper shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Skipper a Clipper of these terms and conditions.
- In the event of any breach of this contract by Skipper a Clipper the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of Skipper a Clipper exceed the Fee of the Services.
- The Client shall not set off against the Fee amounts due from Skipper a Clipper.
- Skipper a Clipper may license or sub-contract all or any part of its rights and obligations without the Client's consent.
- Skipper a Clipper reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which Skipper a Clipper notifies the Client of such change.
- Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.