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Last revision: April 23,2015
The Renter agrees to charter the Boat and equipment described above for the time period and rate indicated per the accepted reservation for the Boat between Renter and the Owner. The Renter acknowledges and accepts the BOATSETTER Renter Policies and Procedures and Terms of Service applying to the boating activities contemplated by this Agreement and confirms that the Renter has read them. In consideration of being provided with the Boat and equipment for participating in the boating activities contemplated herein, the Renter agrees to the following terms and conditions.
BAREBOAT CHARTER AGREEMENT TERMS AND CONDITIONS
a. Owner – The person or entity that has registered on the BOATSETTER website and has title to the boat.
b. Renter – The person or entity that has booked the boat through the BOATSETTER website. Also referred to as the Renter.
c. Captain – The person who is contracted by the Renter to pilot the Boat.
d. Boat – The vessel to be chartered hereunder per the accepted reservation between the Owner and the Renter.
e. BOATSETTER – a peer-to-peer boat charter marketplace website and online service provided by Collaborative Boating, Inc.
f. Delivery Inspection Report or Check out/In form – A report issued by the Renter or the Captain upon inspection of the Boat at the start of the charter period noting the condition of the Boat, amount of fuel, and any pre-existing damage.
g. The term for bareboat rental of the Boat as indicated on the reservation accepted by the Renter and the Owner.
2. CONDITION OF BOAT.
The Renter acknowledges that the Renter and/or the Captain has examined or will examine the Boat and equipment described in this contract and has visually inspected and verified the condition thereof and that verifies that the same is in good condition and repair except as noted in the Delivery Inspection Report prior to beginning the Charter Period. Before accepting the Boat, the Renter will be given the option to submit date-stamped electronic photographs of any pre-existing damage as permitted by BOATSETTER. Renters may be liable for any damage they fail to document before accepting the Boat, at the discretion of BOATSETTER. The Renter and the Owner will complete the BOATSETTER check-in and check-out checklist at the beginning and end of each bareboat Renter whether electronically or manually.
The Renter shall be responsible for operating expenses during the Charter Period, including without limitation:
a) The operating costs of the Boat during the period of the bareboat charter, including expenses for fuel, food, water, electricity, laundry, daily maintenance and repair, consumable stores of the boat, pilotage, diver’s fees, port charges, customs fees, local taxes as applicable, and provisions and supplies for the Renter’s use and enjoyment;
b) Captain’s fee and any crew fees, if applicable; and
c) Renter’s insurance reasonably required by Renter including Renter’s Protection and Indemnity insurance coverage during the Charter Period. It is agreed that the Captain is an agent of the Renter and the Renter shall remain responsible for any and all actions or inactions of the Captain.
d) The repair of any damage to the Boat incurred by Renter or the Captain during the Charter Period which is not fully covered by the insurance on the Boat, including any deductibles.
Owner shall maintain owner’s insurance on the Boat, including hull and machinery and owner’s protection and indemnity insurance. Owner’s insurances do not cover the Renter’s Protection and Indemnity. The Renter shall not violate the terms of the Owner’s insurance policy, including without limitation, the navigational limits it imposes.
4. DAMAGE OR LOSS OF BOAT.
The Renter shall be responsible for any uninsured damage or loss of the Boat, including any deductible, and agrees to pay the Owner for any loss, damage, theft, disappearance, collision or other occurrence to the Boat while the Boat and equipment is in the custody of the Renter per the Charter Term or in accordance with this Agreement. However the Renter shall not be responsible or liable to the Owner for mechanical failures that are not caused by the Renter or the Captain’s negligence. The Owner is responsible for routine maintenance, mechanical efficiency, and to make sure the Boat is in a seaworthy condition for the Charter Term. The Owner shall remain liable for expenses related to towing and on-water support that are required as a result of mechanical failure that is not caused by the Renter or the Captain’s negligence. Renter agrees to pay for towing, salvage or other services and expenses caused to the Boat and equipment resulting from negligent use and or operation during the Charter Term under this Agreement.
5. MECHANICAL FAILURES NOT CAUSED BY THE RENTER.
If the Boat, after delivery to the Renter for the Charter Term, sustains breakdown of machinery that makes the Boat unusable for its intended purpose for a period of at least 25% of the Charter Term and was not caused by the Renter or the Captain, the Owner authorizes BOATSETTER to reimburse the full charter cost to the Renter and cancel the Charter Term and this Agreement. The Owner remains liable for charter expenses including but not limited to towing, insurance premiums, commissions, reimbursement to Renter for the entire cost of the captain and other fees owed to BoatSetter for arranging the charter (the “Charter Expenses”) Owner authorizes BoatSetter to charge owner for such charter expenses and withdraw from owner’s bank account or credit card on file with BoatSetter. If the boat is unusable for a period of less than 25% of the charter period BoatSetter reserves the right to reimburse the Renter for a pro-rated portion of the charter based on the percent of the time the boat was unusable and Owner authorizes BoatSetter to charge owner for such charter expenses and withdraw from owner’s bank account or credit card on file with BoatSetter.
6. CHARTER TERM AND OWNERSHIP.
The agreed Charter Term on this Agreement is as stipulated on the accepted reservation between the Owner and the Renter at the time of reservation. The Renter agrees to return the Boat and its equipment to the Owner no later than the date and time “due” as listed on the reservation unless the Charter Term is extended and agreed upon between the parties. If the Renter fails to return the Boat and equipment by the date and time “due” such failure may constitute an unauthorized taking and the Renter will be fully liable for all legal fees, costs, and expenses including consequential loss of potential charter or charter income to the Owner, up to the replacement cost of the Boat and its equipment. Times for pick up and return of the Boat are subject to extensions resulting from force majeure. Force majeure is defined as any cause directly attributable to acts, events, non-happenings, omissions, accidents, or Acts of God, beyond the reasonable control of the Owner or the Renter (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 Owner’s or the Renter’s control and not caused by either the Owner’s or the Renter’s negligence).
7. DURATION OF CHARTER.
The Renter or the Captain will pick up the Boat at the home port as indicated on the accepted reservation. If delivered to the Renter, whether by the Owner or the Captain, at a location other than the home port, the Charter Term will start at the time the Boat leaves its home port. The Renter is responsible for the Boat effective upon the Renter or the Captain taking possession. If the Boat is not available within half an hour of the scheduled pickup time, the return time will be extended by the amount of pick-up time. If later than half hour, the Renter has the right to cancel the charter with full reimbursement. If the Renter takes delivery late due to his own actions the Owner is not responsible for extending the Charter Term but may do so at his/her discretion.
The Renter understands and agrees that the Boat and equipment described in this Agreement remain the property of the Owner and the Renter agrees to return same to the location from which rented or the Owner’s alternate location designed on the reservation accepted by the Owner and the Renter at time of charter. For purposes of enforcing the Owner’s ownership of the Boat and its equipment and to protect the Owner’s rights under this Agreement, the Renter agrees that the Owner may retake possession of the Boat and / or its equipment at any time after the Charter Term and for such purposes to enter upon the premises of the Renter, if necessary. The Renter hereby waives the right of any action against Owner, BOATSETTER, its officers, directors, employees, contractors, sub-contractors, organizational affiliates, their respective instructors, guides, captains, administrators, other participants, any sponsors, advertisers or agents by reason of such retaking or entry.
8. INJURY AND PERSONAL PROPERTY TO RENTER AND GUESTS.
The Renter agrees to assume all responsibility for loss or damage from any cause to the Renter and any guest or passenger of the Renter and/or their personal property during the Charter Term. The Renter shall indemnify and hold the Owner, BOATSETTER, their, officers, directors, employees, contractors, sub-contractors, organizational affiliates, their respective instructors, guides, captains, administrators, other participants, any sponsors, advertisers, and employees or agents harmless against and from any and all damages and liability arising out of or resulting from the Renter’s use and operation of the Boat and its equipment. The Renter further assumes all risk involved in the use and operation of the Boat and equipment and acknowledges the inherent and natural hazards and perils of boating.
The Renter shall obtain and pay for any required permits and licenses, excluding Boat registration, required for its use during the Charter Term. The Renter agrees to operate the Boat and/or its equipment in accordance with all county, state, or federal laws and boating regulations and is personally responsible for any fines due to said violation or negligent operation and does hereby agree to indemnify the Owner for same. If the Boat and equipment are seized or commandeered as a result of the Renter’s or the Captain’s actions or inactions, the Renter is liable to the Owner for the actual cash value of the Boat and/or its equipment.
10. OPERATION / USE OF BOAT.
The Boat shall be chartered solely for the purpose of the Renter’s recreational enjoyment. The Renter shall not transport merchandise or carry passengers for pay, or engage in any trade in any way. The Boat is chartered on a demise basis. Accordingly, during the Charter Term, it is mutually agreed that the Renter shall have full authority regarding the operation and management of the Boat and is solely responsible for retaining and paying a Captain if necessary and that the Owner relinquishes such authority and/or control to the Renter. The Renter shall not allow anyone to operate the Boat unless properly trained and experienced in coastwise piloting and navigation of vessels similar in type and size to the Boat. The Renter’s appointed Captain and crew, if applicable, shall operate the Boat at the Renter’s direction, provided however, the Captain and/or crew shall not have to carry out any order that jeopardizes the safety of the Boat or those on board. The Renter acknowledges that he has been informed of the whereabouts of the safety equipment on board the Boat. Renter will at all times abide by local, regional and US Coast Guard regulations. The Renter will, at no time, allow any person(s) to use, operate, or be carried in the Boat and equipment without approved personal floatation devices available for each person. The maximum number of passengers the renter will allow aboard the boat at any time will be the lesser of the number of passengers the owner authorizes, the boats safe capacity or twelve people. The Renter warrants that he/she has appropriate knowledge of operation of the Boat and understands and agrees that this bareboat charter is not contingent upon his/her prior experience with the specific Boat. The Renter further agrees and understands that he/she will be provided with minimal written and/or oral instructions in the operation of said Boat and equipment and further agrees to indemnify and hold Owner harmless against and from any and all damages, claims, or causes of actions relating to the use and operation of the Boat under this Agreement. The Renter understands that, should he/she permit the operation of the Boat by the Captain or a member of his/her party other than himself/herself, all terms and conditions of this Agreement remain the same: the Renter’s liability and responsibility shall not cease or be altered in any way and shall be extended to those he permits to operate the Boat and his/her guests. The Renter warrants and agrees not to operate the Boat and equipment while under the influence of alcohol or illegal drugs nor carry or transport any illegal substances or persons. Unless otherwise specifically approved in writing by BOATSETTER, the Boat may not venture more than 12 miles off the coastline.
11. WATER TOYS.
Unless specifically rented under separate agreement, water toys such as rafts, dinghies, tenders, jet skis, wave runners, paddle boards, paddle boats, or other items carried upon the Boat are not included for use as part of this Agreement. Should the Renter use any such water toys, he does so solely at his own risk and in violation of this Agreement. Renter agrees and acknowledges that all third-party liability for property damage or bodily injury relating to the use and operation of the water toys are the sole responsibility of the Renter and that the Owner provides no liability protection to the Renter, Captain, passengers, or third parties with respect to such use. Renter shall indemnify and hold Owner, BOATSETTER, their, officers, directors, employees, contractors, sub-contractors, organizational affiliates, their respective instructors, guides, captains, administrators, other participants, any sponsors, advertisers, employees, or agents harmless against and from any and all damages and liability arising out of or resulting from Renter’s use and operation of the water toys. The Renter further assumes all risk involved in the use and operation of the water toys and acknowledges the inherent and natural hazards and perils of the use of water toys.
12. THIRD PARTY LIABILITY.
Renter agrees and acknowledges that all third party liability for property damage or bodily injury relating to the use and operation of the Boat and equipment is the sole responsibility of the Renter. The Renter may obtain Renter’s insurance through the BOATSETTER program. The Renter shall indemnify and hold Owner, BOATSETTER, their, officers, directors, employees, contractors, sub-contractors, organizational affiliates, their respective instructors, guides, captains, administrators, other participants, any sponsors, advertisers, employees, or agents harmless against and from any and all damages and liability arising out of or resulting from the Renter’s use and operation of the Boat and equipment and shall pay any deductible relating to such claims. The Renter further assumes all risk involved in the use and operation of the Boat and equipment and acknowledges the inherent and natural hazards and perils of boating.
13. NOTICE OF LOSS OR DAMAGE.
The Renter agrees to immediately report any accident, loss or damage to the Owner and BOATSETTER and further agrees to cooperate and provide written or oral statements to the Owner or its designated representative and follow all instructions issued by the Owner, its representative, or BOATSETTER in the event of accident, loss, or damage arising during the Charter Term. The Renter must not incur any expenses with regard to breakdown without express permission from the Owner, except that the Renter should take any reasonable action necessary to prevent further impending injury or damage.
14. PAYMENT OF CHARGES.
The Renter shall pay the Owner all charges due hereunder on demand as stipulated in the BOATSETTER Terms and Conditions. The Renter will return the Boat with the same amount of fuel as when it was picked up by the Renter or the Renter’s Captain as indicated on the Delivery Inspection Report and on the BOATSETTER check in form. If the Boat is returned with less fuel than as indicated on the Delivery Inspection Report and the BOATSETTER check in form, BOATSETTER shall deduct the cost of the estimated deficiency of fuel from the Renter’s deposit and pay the Owner.
15. DEPOSIT/COLLECTION EXPENSE.
Any deposit given by the Renter shall be applied to and guarantee the Renter’s faithful performance of all the provisions of this Agreement, and for all sums which now or hereafter may be due for all losses, services and repairs necessary to the Boat and equipment as provided hereunder and as further provided in the BOATSETTER Terms and Conditions.
16. DISPUTE RESOLUTION.
All claims and disputes arising under or relating to this Agreement are to 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. In the event that a party fails to pay any award, the award may be converted to judgment in a Court of competent jurisdiction.
17. ENTIRE CONTRACT.
The Renter and the Owner understand and agree that the terms and conditions contained herein along with the BOATSETTER Terms and Conditions and BOATSETTER Policies and Procedures contain all agreements of the parties, and further, that the headings used herein are for the convenience of the parties only and should not be construed otherwise. No oral explanation or information by any Party shall alter the meaning or interpretation of this Agreement. No modification or amendment of the terms hereof shall be made unless made in writing signed by all Parties.
PARTICIPANT RELEASE OF LIABILITY AND ASSUMPTION OF RISK AND RESPONSIBILITY
In consideration of being allowed to rent a Boat from the Owner and to participate in any way in any activities or any other events and activities related thereto, (collectively, the “Activities”) I, for myself, my personal representatives, guests, assigns, heirs, and next of kin:
• ACKNOWLEDGE, agree, and represent that I understand the inherent risk and nature of water sports and related activities in which I am intending to engage, and that I confirm that I am physically and mentally capable of participating in the Activities in which I am intending to engage and willingly agree to comply with the stated and customary terms and conditions of participation related thereto. I further agree and warrant that if at any time I believe the conditions related to the Activities to be unsafe, I will immediately notify the Owner. I understand that the nature of a bareboat charter may render it unsuitable for anybody with physical disability or undergoing medical treatment. By signature of this Agreement, I warrant the medical fitness of the me and my guests and the Captain, if applicable, for the Charter Period;
• I am willingly and knowingly electing to participate in the Activities in spite of the potential risk of danger and I willingly and voluntarily assume full responsibility for myself and my guests for any injury, loss or damage suffered by me or caused by me, whether caused in whole or in part by the negligence of the Owner, BOATSETTER, their officers, directors, employees, contractors, sub-contractors, organizational affiliates, their respective instructors, guides, captains, administrators, other participants, any sponsors, advertisers, and, if applicable, the employees or agents of any of the foregoing.
• FULLY UNDERSTAND that: (a) my participation in the Activities arranged at my request by BOATSETTER and water sports in general INVOLVE RISKS AND DANGERS OF DAMAGE TO PERSONAL PROPERTY AND SERIOUS BODILY INJURY, INCLUDING PERMANENT DISABILITY, PARALYSIS, AND DEATH (collectively, “RISKS”); (b) these Risks and dangers may be foreseeable or unforeseeable, caused by my own actions or inactions, the actions or inactions of others participating in the Activities, the condition in which the Activities takes place, or THE NEGLIGENCE OF THE OWNER, BOATSETTER OR THEIR AFFILIATES OF THE OWNER there may be OTHER RISKS AND SOCIAL AND ECONOMIC LOSSES either not known to me or not readily foreseeable at this time, including weather and other acts of nature. I FULLY UNDERSTAND AND ACKNOWLEDGE THAT THE AFOREMENTIONED RISKS, DANGERS AND HAZARDS ARE A POTENTIAL IN CONNECTION WITH THE ACTIVITIES AND ACCEPT AND ASSUME ALL SUCH RISKS AND ALL RESPONSIBILITY FOR LOSSES, COSTS, AND DAMAGES incurred by my and/or my guests as a result of my participation.
• HEREBY RELEASE, WAIVE, DISCHARGE, AND COVENANT NOT TO SUE OWNER, BOATSETTER their officers, directors, employees, contractors, sub-contractors, organizational affiliates, their respective instructors, guides, captains, administrators, other participants, any sponsors, advertisers, employees, or agents, (each considered one of the “RELEASEES” herein) FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, LOSSES, INJURIES, DAMAGE TO PROPERTY, WRONGFUL DEATH, LOSS OF SERVICES, LOSS PROFITS, CONSEQUENTIAL, EXEMPLARY, INDIRECT, PUNITIVE, OR OTHER DAMAGES WHICH MAY ARISE OUT OF OR OCCUR AS A RESULT OF MY PARTICIPATION IN THE ACTIVITIES, INCLUDING, BUT NOT LIMITED TO NEGLIGENT RESCUE OPERATIONS. I FURTHER AGREE that if, despite this RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK, AND INDEMNITY AGREEMENT I, or anyone on my behalf, makes a claim against any of the Releasees, I WILL INDEMNIFY, SAVE, AND HOLD HARMLESS EACH OF THE RELEASEES from any litigation expenses, attorney fees, loss, liability, damage, or cost which any may incur as the result of such claim. I SPECIFICALLY UNDERSTAND THAT I AM RELEASING, DISCHARGING AND WAIVING ANY CLAIMS OR ACTIONS THAT I MAY HAVE PRESENTLY OR IN THE FUTURE FOR THE NEGLIGENT ACTS OR CONDUCT OF THE OWNERS, BOATSETTER THEIR officers, directors, employees, contractors, sub-contractors, organizational affiliates, their respective instructors, guides, Captains, administrators, other participants, any sponsors, advertisers or agents.
• Regardless of the situation or circumstances giving rise to a claim, I waive any right to seek consequential, punitive or exemplary damages against Owner, BOATSETTER, their officers, directors, employees, contractors, sub-contractors, organizational affiliates, their respective instructors, guides, Captains, administrators, other participants, any sponsors, advertisers, or agents for any reason whatsoever.
• I HAVE READ AND UNDERSTOOD THIS DOCUMENT, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY AGREEING TO IT, AND HAVE AGREED TO IT FREELY AND WITHOUT ANY INDUCEMENT OR ASSURANCE OF ANY NATURE. I ACKNOWLEDGE THAT THIS AGREEMENT AFFECTS MY LEGAL RIGHTS AND AGREE TO BE BOUND BY ITS TERMS. MY AGREEMENT ALSO SIGNIFIES MY INTENTION TO RELIEVE AND INDEMNIFY the OWNER, BOATSETTER, THEIR ORGANIZATIONAL AFFILIATES, THEIR RESPECTIVE INSTRUCTORS, GUIDES, CAPTAINS, ADMINISTRATORS, OTHER PARTICIPANTS, ANY SPONSORS, ADVERTIZERS OR AGENTS FROM ANY AND ALL LIABILITY TO THE GREATEST EXTENT ALLOWED BY LAW, INCLUDING, BUT NOT LIMITED TO LIABILITY FOR PERSONAL INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH WHICH I OR MY GUESTS MIGHT SUFFER DURING MY PARTICIPATION IN THE ACTIVITIES COVERED BY THIS AGREEMENT. I agree that if any term set forth in this document is found to be unenforceable, all other terms set forth in this document are severable from the terms that are invalidated.