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Last Modified Date: April 23, 2015
BOATSETTER does not itself offer or provide bareboat charter or captain services. The BOATSETTER website simply brings people together. BOATSETTER is NOT a party to this Agreement which exists solely between Renter and his/her/its hired Captain. Read this Agreement carefully and make certain you understand its terms and conditions as this Agreement impacts your legal rights and imposes obligations.
FOR AND IN CONSIDERATION of the mutual promises and agreements contained herein, Renter hires Captain, and Captain agrees to work for Renter under the terms and conditions hereby agreed upon by the parties in connection with the Renter’s bareboat charter of a vessel and its machinery, sails, generators, electronics, contents and appurtenances as identified and described on the Final Booking Page of the BOATSETTER website (collectively referred to as the “Boat”) from the Boat’s Owner (the “Owner”) through the BOATSETTER website (the “Charter”):
SECTON 1 – WORK TO BE PERFORMED
1.1 Term. Renter agrees to hire Captain to perform the services and work (“Duties”) as stated in section 1.2 of this Agreement.
1.2 Duties. Captain agrees to perform the following Duties for Renter and in satisfaction of Renter’s obligations as set out in the BOATSETTER Terms of Service and the Bareboat Charter Agreement and the Renter Policies and Procedures, all of which are incorporated herein, which Duties shall include, but are not limited to, the following:
- Perform and record pre-charter and post-charter safety and Boat condition inspections (Check-In and Check-Out forms), including issuance of a Delivery Inspection Report using forms supplied by BOATSETTER.
- Report promptly to Renter any deficiencies in the Boat which causes concerns for the safety of Renter, passengers, crew or property, including the Boat, property of the Owner and/or Renter, and third-party property.
- Pilot and maintain control of Boat within the charter’s geographic area.
- Pilot and maintain control of the Boat in a safe and legal manner exhibiting seamanlike conduct at all times.
- Comply with all relevant laws applicable to the performance of the Duties and the operation of the Boat as well as any equipment used in the performance of the Duties.
- Take reasonable and prudent actions as deemed necessary by the Captain to protect and preserve the safety of persons and property.
- Comply with reasonable directions and instructions in relation to the performance of the Duties.
- Present, dress and otherwise maintain a well groomed appearance in a
manner consistent with the yacht captaining industry.
- Use best efforts to make any necessary repairs, if possible, and to protect the safety of the Renter and any guests onboard, the Boat, and any property at risk as a result of such mechanical failure.
- Clean and refuel the Boat upon completion of the Charter, as necessary.
- Perform associated services and work as reasonably requested by Renter.
1.3 Dates and times of service. The Duties to be performed shall commence one (1) hour prior to the scheduled Charter and end upon the completion of the post-Charter inspection unless the Captain’s services are otherwise terminated in accordance with this Agreement.
1.4 Location of service. The Duties will commence and end at a port located in the United States.
SECTION 2 – COMPENSATION
2.1 Compensation. In consideration of all services to be rendered by Captain to Renter, Renter shall pay Captain the fee set forth on the Final Booking Page of the BOATSETTER website, incorporated herein, less a booking fee, credit card transaction fees, chargebacks and crew-type insurance if provided through the BOATSETTER website and all in accord with the Fee Schedule.
2.2 Fee Calculation. The fee shall be calculated by multiplying the hours of service by the hourly fee less a booking fee, credit card transaction fees, chargebacks and crew-type insurance if provided by BOATSETTER. Said compensation shall be paid upon collection of funds from the Renter and full completion of the Charter. Please see the Fee Schedule, incorporated herein, for additional information.
2.3. Pay Agent. The Renter authorizes BOATSETTER to act in the limited capacity of a pay agent on Renter’s behalf. All parties hereto direct BOATSETTER to collect fees from the Renter and to pay Captain a sum based on the fee calculation set forth at paragraph 2.2, above.
2.4 Withholding. Captain is an independent contractor and shall be responsible for payment of his/her own income taxes, social security, worker’s compensation and other relevant taxes regardless of the venue.
2.5 Expenses. Captain shall not be entitled to reimbursement of any expenses.
SECTION 3 – INDEPENDENT CONTRACTOR STATUS
3.1 Captain acknowledges that he is an independent contractor and is not an agent, partner, joint venture or employee of Renter, Owner or BOATSETTER. Captain shall have no authority to bind or otherwise obligate Renter, Owner or BOATSETTER in any manner, nor shall Captain represent to anyone that he/she has a right to do so.
3.2 Captain warrants and represents that he/she is eligible to provide services as an Independent Contractor.
3.3 Captain shall never be construed to be an agent of employee of Renter, Owner and/or BOATSETTER.
3.4 Captain has no right to create a lien on the Boat and as further inducement to being hired specifically waives, releases and forever discharges the Boat from any lien for wages.
SECTION 4 – REPRESENTATIONS AND WARRANTIES OF CAPTAIN
4.1 Captain warrants and represents that he/she has proper credentials to verify his/her qualifications and the licensing necessary to perform the duties of Captain of the designated Boat for the Charter and is otherwise fully qualified to perform all duties required by this Agreement in a lawful and proper manner.
4.2 Captain warrants and represents that he/she is free to enter into this Agreement, and that this engagement does not violate the terms of any agreement existing between Captain and any third party. During the term of the Agreement, Captain shall devote as much productive time, energy, and abilities as may be needed and necessary to perform the required duties in a timely and productive manner.
4.3 Captain warrants and represents having examined the Boat and found it to be in good and seaworthy condition. Captain agrees to immediately advise Renter if, at any time, Captain finds any condition on board the Boat to be unsafe.
4.4 Captain warrants and represents having examined the Boat’s safety equipment and having found this equipment to be adequate, in good condition and readily accessible.
4.5 Captain warrants and represents he/she will follow the reasonable directives of the Renter.
4.6 Captain warrants and represents that under no circumstances will he/she engage in any illegal activity while on board the Boat, nor will Captain use the Boat for any unlawful purpose.
4.7 Captain warrants and represents that he/she shall be responsible to Boat and Renter for any damage or loss to the Boat caused by Captain’ negligence.
4.8 Captain warrants and represents that he/she will personally perform the Duties and he/she will not assign or delegate the Duties.
4.9 Captain warrants and represents that he/she does not have any physical and/or medical conditions that would affect Captain’s ability to provide the herein Duties.
5.0 Captain warrants and represents that he/she will not vary the fee structure set forth in this Agreement and as may be calculated pursuant to the Fee Schedule.
SECTION 5 – INSURANCE
5.1 To the extent such insurance is available and without any representation as to its availability, Renter will request BOATSETTER list the Captain on BOATSETTER’s crew coverage or similar type of insurance for the benefit of the Captain. The Captain may be listed as an additional insured on any BOATSETTER-sourced insurance policy provided to Owner or Renter.
5.2 By undertaking the herein Duties, Captain acknowledges understanding what insurance coverages are and are not in place. Don’t assume any insurance coverage is in place, ask!
5.3 Captain is responsible for any insurance not provided through the BOATSETTER website.
SECTION 6 – CAPTAIN APPROVAL & REGISTRATION.
6.1 Owner must approve any captain before operation of the Boat, and this Agreement is subject to the Owner’s approval of Captain for the Charter.
6.2 Any captain of the Boat must be registered with BOATSETTER.
SECTION 7 – INDEMNITY, DEFEND & HOLD-HARMLESS – Read Carefully!
7.1 Captain and Renter agree to indemnify, defend, and hold BOATSETTER, Owner, and their successors, insurers, officers, directors, agents and/or employees as well as the Boat harmless against and from any and all actions, causes of action, claims, demands, costs, liabilities, liens, expenses and damages (including attorney’s fees) arising out of, or in connection with any breach of this Agreement or any acts or omissions of Captain or Renter in connection with the Boat or Charter.
7.2 Captain agrees to indemnify, defend, and hold Renter harmless against and from any and all actions, causes of action, claims, demands, costs, liabilities, liens, expenses and damages (including attorney’s fees) arising out of, or in connection with, any breach of this Agreement or any acts or omissions of Captain.
7.3 Renter agrees to indemnify, defend, and hold Captain harmless against and from any and all actions, causes of action, claims, demands, costs, liabilities, liens, expenses and damages (including attorney’s fees) arising out of, or in connection with, any breach of this Agreement or any acts or omissions of Renter.
SECTION 8 — TERMINATION
8.1 All parties acknowledge this Agreement may be terminated by Captain or Renter on the basis of a force majeure event (war, terrorism, Acts of God, etc.) or unforeseen circumstances outside of Renter’s or Captain’s control.
8.2 Renter may terminate this Agreement at any time for reasonable cause, including, without limitation, the Captain’s failure to timely appear for the Charter or properly perform his duties as captain, inappropriate conduct toward Renter or any guests or third parties, breach of this Agreement, breach of any applicable policies and/or conduct that places Renter or any guests or third parties in danger.
8.3 Renter may also terminate this Agreement immediately if the Charter is cancelled by Owner prior to its commencement.
8.4 In the event of a termination, the Captain agrees to safely return the Boat and those aboard to the port of Redelivery as shown on the Charter Confirmation, incorporated herein and to complete all post-charter requirements.
8.5 In the event of a termination by Renter, Captain shall only receive so much of his/her fee as has been earned as determined by Renter as his/her sole remedy. However, the Captain’s failure to complete post-charter requirements shall result in the Captain forfeiting his/her fee.
8.6 In the event of a termination by Captain, Renter shall be entitled to damages from Captain not to exceed the amount of the fee to be paid the Captain had the captain service been performed.
SECTION 9 – LAW & DISPUTE RESOLUTION. — Read Carefully.
9.1 This Agreement and the rights of the parties hereto shall be governed by and shall be construed in accordance with the general maritime law of the United States with the laws of the State of Florida to supplement as legally permissible.
9.2 All claims and disputes of whatsoever nature howsoever arising out of or relating to this Agreement shall be settled by binding arbitration with Arbitration Resolution Services (“ARS”). The parties expressly agree to abide by any and all rules of ARS as found in their web site at www.arbresolutions.com. Any award issued by ARS may be converted to a judgment by a court of competent jurisdiction.
9.3 Renter and Captain expressly acknowledge that the sole and exclusive venue for any legal action relating to the enforcement or interpretation of the instant arbitration term shall be in Dade County, Florida. Renter and Captain hereby expressly agree, consent and submit to the personal jurisdiction of the state or federal courts of Dade County, Florida.
SECTION 10 — MISCELLANEOUS PROVISIONS
10.1 The provisions of this Agreement shall be binding upon and for the benefit of the heirs, personal representative, successors and assigns of the parties.
10.2 Additionally, in the event a suit or arbitration action is filed to enforce this Agreement or with respect to this Agreement, the prevailing party or parties shall be reimbursed by the other party for all costs and expenses incurred in connection with the suit or action, including without limitation, reasonable attorney’s fees at the trial level and on appeal.
10.3 No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
10.4 This Agreement constitutes the entire agreement between the parties pertaining to its subject matter and it supersedes all prior contemporaneous agreements, representations and understandings of the parties. No supplement, modification or amendment of this Agreement, other than those identified herein, shall be binding unless executed in writing by all parties.
10.5 If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect.
10.6 In the event of any conflict between this Agreement (or any portion thereof) and any other agreement or document identified and incorporated herein, the terms of this Agreement shall prevail.