AGREEMENT TO LET AND HIRE, is only available in those countries where permitted. In Greece we do not charter.
The OWNER agrees to let PEAK to the CHARTERER and not to enter into any other Agreement for the Charter of PEAK for the same period.
The CHARTERER agrees to hire PEAK and shall pay the Charter Fee, the Advance Provisioning Allowance, the Delivery/Re-delivery Fee, the Security Deposit and any other agreed charges, in cleared funds, no later than the dates specified in the final charter contract.
The OWNER shall at the beginning of the Charter Period deliver PEAK free of encumbrance to the Place of Delivery in compliance with Dutch requirements and the CHARTERER shall take delivery in full commission and working order. PEAK shall be insured, seaworthy, clean, in good condition throughout and ready for service, with full equipment, including up-to-date safety and lifesaving equipment (including life-jackets for children if any are carried in the CHARTERER’s Party), as required by PEAK’s registration authority and fitted out as appropriate for a Vessel of her size and type and enabling the CHARTERER to use PEAK as set out in these terms. The OWNER does not warrant her use and comfort in bad weather conditions for all cruises or passages within the Cruising Area.
The CHARTERER shall re-deliver PEAK to the OWNER at the Place of Re-Delivery free of any debts incurred for the CHARTERER’s account during the Charter Period and in as good a condition as when delivery was taken, except for fair wear and tear arising from ordinary use. The CHARTERER may, if he wishes, re-deliver PEAK to the Place of Re-Delivery and disembark prior to the end of the Charter Period but such early re-delivery shall not entitle the CHARTERER to any refund of the Charter Fee.
a) The CHARTERER shall restrict the cruising of PEAK to within the Cruising Area and to within regions in the Cruising Area in which PEAK is legally permitted to cruise. The CHARTERER shall also restrict time under way to an average of six (6) hours per day, unless the Captain, at his sole discretion, agrees to exceed this time.
b) While the Captain will make all reasonable efforts to accommodate the CHARTERER’s request for a berth; it is understood that the Captain and/or Owner cannot be held liable for the non-allocation of the berth.
MAXIMUM NUMBER OF PERSONS - RESPONSIBILITY FOR CHILDREN - HEALTH OF THE CHARTERER’S PARTY
a) The CHARTERER shall not at any time during the Charter Period permit more than the Maximum Number (6) of Guests Sleeping or Cruising on Board plus, at the sole discretion of the Captain, a reasonable number of visitors whilst PEAK is securely moored in port or at anchor, or as permitted by the appropriate authority.
b) If children are taken on board, the CHARTERER shall be fully responsible for their conduct and entertainment and no member of the Crew shall be held responsible for their conduct or entertainment.
c) The nature of a Charter may render it uncomfortable or unsuitable for anybody with physical disability or undergoing medical treatment. By signature of this Agreement the CHARTERER warrants the medical fitness of all members of the CHARTERER’s Party for the voyage contemplated by this Agreement. The CHARTERER and his party undertake to have all necessary visas and vaccinations for the countries to be visited.
a) The OWNER shall provide a Captain qualified in accordance with Dutch requirements and acceptable to the insurers of PEAK. He shall also provide a suitably qualified and properly trained Crew. No member of the Crew shall carry or use any illegal drugs on board PEAK or keep any rearms on board (other than those declared on the manifest) and the Captain and Crew shall comply with the laws and regulations of any country into whose waters PEAK shall enter during the course of this Agreement.
b) It is understood that the Crew are entitled to a minimum amount of rest in accordance with PEAK’s Code of Practice, which includes the Maritime Labour Convention (MLC) 2006.
c) The Captain and Crew are bound at all times to keep all information related to this Charter, the OWNER, the CHARTERER, and all Guests as confidential and no information is to be disclosed to any third party without prior permission of the CHARTERER in writing.
CAPTAIN’S AUTHORITY AND RESPONSIBILITIES
a) The OWNER shall ensure that the Captain shows the CHARTERER the same attention as if the CHARTERER were the OWNER. The Captain shall comply with all reasonable orders given to him by the CHARTERER regarding the management, operation and movement of PEAK, wind, weather and other circumstances permitting. The Captain shall not, however, be bound to comply with any order which might, in the reasonable opinion of the Captain, result in PEAK moving to any port or place that is not safe and proper, or might result in the CHARTERER failing to re-deliver PEAK upon the expiration of the Charter Period, or would, in the reasonable opinion of the Captain, cause a breach of these terms & conditions. Further, without prejudice to any other remedy of the OWNER, if, in the reasonable opinion of the Captain, the CHARTERER or any of his Guests fail to observe any of the provisions in these terms & conditions and if such failure continues after the Captain has given due and specific warning to the CHARTERER in writing in respect of the same, the Captain shall inform the OWNER, and the OWNER may terminate the Charter forthwith or instruct the Captain to return PEAK to the Place of Re-Delivery and upon such return the Charter Period shall be terminated. The CHARTERER and his Guests shall disembark, the CHARTERER having settled all outstanding expenses with the Captain beforehand and the CHARTERER shall not be entitled to any refund of the Charter Fee.
b) With particular regard to the use of water sports equipment, the Captain shall have the authority to exclude the CHARTERER or any or all of his Guests from use of any particular water sports equipment if they are unsafe, or behaving in an irresponsible manner, or are under the influence of alcohol, or are failing to show due concern for other persons or property when operating this equipment.
NOTIFICATIONS BY THE CAPTAIN
The Captain shall immediately notify the Owner of any breakdowns, disablements, crew changes, accidents, or other significant incidents that occur during the Charter Period.
The Charter Fee includes the charter of PEAK with all its equipment in working order; tools; stores; cleaning materials and basic consumable stores for engine room, deck, galley and cabins; laundry of ship’s linen; the crew’s wages and and uniforms, as well as the insurance of PEAK and crew. Food for skipper and crew is not included, except when the yacht is moored or anchored for longer periods of time. The CHARTERER will pay, at cost, for all other expenses. These include, but are not limited to, shoreside transport; fuel for the main engines and generators; fuel for tenders and water sports equipment; food and all beverages for the Charter Party; berthing dues and other harbor charges including pilots’ fees, local taxes, divers’ fees, customs formalities and any charges for waste disposal, charges for water and electricity taken from shore; ships’ agents’ fees where applicable; personal laundry; Charter Party communications and internet use; and hire or purchase costs of any special equipment placed on board at the CHARTERER’s request.
Payment for extraordinary expenses such as special requirements or equipment, shoreside transport or excursions or any other expenses not customarily considered part of PEAK’s operating costs may be required to be paid, in advance or to the Captain on boarding, in addition to the APA.
Having paid the Advance Provisioning Allowance (APA) to the Owner’s Account, the CHARTERER shall be advised by the Captain, at intervals, as to the disbursement of the APA and shall, if the balance remaining becomes insufficient in the light of current expenditure as supported by receipts, pay to the Captain a suf cient sum to maintain an adequate credit balance. The OWNER shall ensure the Captain will exercise due diligence in the expenditure of the APA. Any charges or fees related to the transfer of the APA to PEAK are for the CHARTERER’s account. Exchange rates, if applicable, cannot be guaranteed.
Prior to disembarkation at the end of the Charter Period, the Captain shall present to the CHARTERER a detailed account of expenditure, with as many supporting receipts as possible, and the CHARTERER shall pay to the Captain the balance of the expenses or the Captain shall repay to the CHARTERER any balance overpaid, as the case may be.
Payment by cheque, credit card or other negotiable instrument is not normally acceptable due to the itinerant nature of PEAK’s seasonal schedule and the CHARTERER should therefore ensure that he has sufficient funds available to cover all foreseeable expenses or arrange to deposit additional funds with the Owner.
DELAY IN DELIVERY
a) If, by reason of force majeure (as explained in these terms and conditions (a)), the OWNER fails to deliver PEAK to the CHARTERER at the Place of Delivery at the commencement of the Charter Period and delivery is made within forty-eight (48) hours of the scheduled commencement date, or within one tenth (1/10th) of the Charter Period, whichever period is the shorter, the OWNER shall pay to the CHARTERER a refund of the Charter Fee at a pro rata daily rate or if it be mutually agreed the OWNER shall allow a pro rata extension of the Charter Period.
FAILURE TO DELIVER
b) If by reason of force majeure the OWNER fails to deliver PEAK within forty-eight (48) hours or a period equivalent to one-tenth (1/10th) of the Charter Period, to the Place of Delivery, whichever period is the shorter from the due time of delivery, the CHARTERER shall be entitled to treat this Agreement as terminated. The CHARTERER’s exclusive remedy will be to receive immediate repayment without interest of the full amount of all payments made by him under the terms of this Agreement. Alternatively, if the parties mutually agree, the Charter Period shall be extended by a time equivalent to the delay or postponed to a mutually agreed time.
c) If the OWNER fails to deliver PEAK at the Place of Delivery at the commencement of the Charter Period other than by reason of force majeure; the CHARTERER shall be entitled to treat this Agreement as repudiated by the OWNER. The CHARTERER will be entitled to immediate repayment without interest of the full amount of all payments made by him under the terms of this Agreement and shall in addition be paid by the OWNER liquidated damages of an amount equivalent to fty percent (50%) of the Charter Fee.
CANCELLATION BY OWNER
d) If prior to the commencement of the Charter Period as set out in Page One of this Agreement, the OWNER tenders notice of cancellation and if the cancellation is by reason of force majeure, the remedy in (b) above shall apply.
e) If the cancellation is for any reason, other than force majeure, the CHARTERER shall be entitled to immediate repayment without interest of the full amount of all payments made by him under the terms of this Agreement and shall in addition be entitled to liquidated damages from the OWNER to be calculated and paid forthwith on the following scale:
i) thirty (30) days or more before commencement of the Charter Period, an amount equivalent to twenty five percent (25%) of the Charter Fee.
ii) more than fourteen (14) days but less than thirty (30) days before commencement of the Charter Period, an amount equivalent to thirty five percent (35%) of the Charter Fee.
iii) fourteen (14) days or less before commencement of the Charter Period, an amount equivalent to fifty percent (50%) of the Charter Fee.
DELAY IN RE-DELIVERY
a) If re-delivery of PEAK is delayed by reason of force majeure, re-delivery shall be effected as soon as possible thereafter and in the meantime the conditions of this Agreement shall remain in force but without penalty or additional charge against the CHARTERER.
b) If the CHARTERER fails to re-deliver PEAK to the OWNER at the Place of Re-Delivery due to intentional delay or change of itinerary against the Captain’s advice, then the CHARTERER shall pay forthwith to the OWNER’s Account demurrage at the daily rate plus fifty percent (50%) of the daily rate. The CHARTERER shall be liable for all operating costs as per Clause 8 and in- damnify the OWNER for any loss or damage which the OWNER shall suffer by reason of deprivation of use of PEAK or cancellation of, or delay in delivery under any subsequent Charter of PEAK.
CANCELLATION BY CHARTERER & CONSEQUENCES OF NON-PAYMENT, DEFAULT OF PAYMENT OR FAILURE TO PAY
Should the CHARTERER give notice of cancellation of this Agreement on or at any time before the commencement of the Charter Period, some or all of the Charter Fee may be retained by the OWNER determined as follows:
- After this Agreement is signed but before the final installment/deposit is due to be paid, the OWNER shall be entitled to retain the first installment/deposit.
- After any subsequent installments/deposits are due to be paid, the OWNER shall be entitled to retain the first installment/deposit and any subsequent installments/deposits due.
If any of the installments/deposits are due to be paid but have not been paid at the time of notice of cancellation then the OWNER shall have a claim against the CHARTERER for the amount so due.
ii) Should the CHARTERER fail to pay, after having been given written notice by the OWNER, any amount due under this Agreement, the OWNER reserves the right to treat this Agreement as having been repudiated by the CHARTERER and to retain the full amount of all payments and to recover all sums unpaid and due up to the date of the repudiation.
DUTY TO MITIGATE FOLLOWING EITHER CANCELLATION OF THE CHARTER OR NON-PAYMENT OF THE CHARTER FEE
. i) Notwithstanding the OWNER’s right to receive or retain all payments referred to above, whether due to cancellation or non-payment, the OWNER shall be under a duty to mitigate the CHARTERER’s loss and in the event that the OWNER is able to re-let PEAK for all or part of the Charter Period under this Agreement, the OWNER will give credit for the net amount of charter hire arising from such re-letting after deduction of all commissions and other consequential expenses arising from such re-letting. The intention is that the OWNER shall receive the same in net proceeds from any re-letting as would have been received under this Agreement had it not been cancelled or repudiated, so that the OWNER shall reimburse or forgive payments received or due from the CHARTERER only to the extent that the net proceeds from any re-letting which correspond to part or all of the Charter Period exceed the amounts which would have been received under this Agreement. The OWNER shall use his best endeavors to re-let PEAK and shall not unreasonably withhold his agreement to re-let, although charters which may reasonably be considered detrimental to PEAK, its reputation, its Crew or its schedule may be refused.
. ii) If, prior to the date of cancellation, PEAK has taken on provisions for the Charter, or has utilized the Delivery/Re-delivery Fee as set out on Page One of this Agreement, then the CHARTERER shall pay for these expenses unless all or part can be either refunded by the supplier or transferred to the next Charter, in which case they shall be adjusted accordingly. The Captain and OWNER shall be under a duty to mitigate these expenses where possible.
c) If, after signature of this Agreement, the OWNER is adjudged bankrupt or, in the case of a company, a liquidator, receiver or administrator is appointed over all or part of the OWNER’s assets, the CHARTERER shall be entitled to cancel the Charter and all monies paid to the OWNER, his agent or the Stakeholder pursuant to this Agreement shall be refunded without further deduction.
BREAKDOWN OR DISABLEMENT
If after delivery PEAK shall at any time be disabled by breakdown of machinery, grounding, collision or other cause so as to prevent reasonable use of PEAK by the CHARTERER for a period between twelve (12) and forty-eight (48) consecutive hours or one tenth (1/10th) of the Charter Period, whichever is the shorter (and the disablement has not been brought about by any act or default of the CHARTERER) the OWNER shall make a pro rata refund of the Charter Fee for the period of the disablement or, if mutually agreed, allow a pro rata extension of the Charter Period corresponding with the period of disablement. If the CHARTERER wishes to invoke this clause he shall give im- mediate notice to the Captain directly, (or via the Broker). The CHARTERER shall not be liable for extra costs relating to the immobilization of PEAK but will remain liable for normal expenses during the period of disablement.
In the event of the actual or constructive total loss of PEAK or if PEAK is disabled as aforesaid for a consecutive period of more than forty-eight (48) hours or one tenth (1/10th) of the Charter Period, whichever is shorter, the CHARTERER may terminate this Agreement by notice in writing to the OWNER or to the Captain if no means of communication is available. Within two (2) working days after such termination, the Charter Fee shall be repaid by the OWNER pro rata without interest for that proportion of the Charter Period out- standing after the date and time on which the loss or disablement occurred. In the event of such termination the CHARTERER may effect re- delivery by giving up possession of PEAK where she lies. The CHARTERER shall be entitled to recover from the OWNER the reasonable cost of returning the CHARTERER and his Guests to the Place of Re-Delivery together with reasonable accommodation expenses incurred.
Alternatively, after a consecutive period of disablement of more than forty-eight (48) hours or one tenth (1/10th) of the Charter Period, whichever the shorter, and dependent on the nature and seriousness of the disablement, by mutual agreement the CHARTERER may elect to remain on board for the duration of the Charter Period and the CHARTERER will then have no further or additional claim against the OWNER.
USE OF PEAK
The CHARTERER shall comply, and shall ensure that the Guests comply, with the laws and regulations of any country into whose waters PEAK shall enter during the course of this Agreement.
The CHARTERER shall ensure that no pets or other animals are brought on board PEAK without the consent in writing of the OWNER. The CHARTERER shall ensure that the behavior of the CHARTERER and his Guests shall not cause a nuisance to any person or bring PEAK into disrepute. PEAK is not to be used for commercial photo or lm shoots of any nature, unless by written permission from the OWNER.
The CHARTERER and Guests shall afford the Crew due respect at all times. No Crew member shall be subjected to any type of harassment, sexual or otherwise, by the CHARTERER or Guests at any time during the Charter Period.
Unless otherwise agreed, smoking shall be restricted to the exterior areas of PEAK designated by the Captain.
Rendezvous diving only unless otherwise noted under special conditions.
The Captain shall promptly draw the CHARTERER’s attention to any infringement of these terms by himself or his Guests, and if such behavior continues after this warning, the Captain shall inform the OWNER or Stakeholder, and the OWNER may, by notice in writing given to the CHARTERER, terminate this Agreement in accordance with these terms and conditions.
If the CHARTERER or any of the Guests shall commit any offense contrary to the laws and regulations of any country which results in any member of the Crew of PEAK being detained, ned or imprisoned, or PEAK being detained, arrested, seized or ned, the CHARTERER shall indemnify the OWNER against all loss, damage and expense incurred by the OWNER as a result, and the OWNER may, by notice to the CHARTERER, terminate this Agreement forthwith.
PEAK operates a zero tolerance policy and the possession or use of any illegal drugs or any weapons (including rearms) is strictly prohibited on board PEAK. Failure to comply shall be sufficient reason for the OWNER to terminate the Charter forthwith without refund or recourse against the OWNER.
The CHARTERER shall not assign this Agreement, sub-let PEAK or part with control of PEAK without the consent in writing of the OWNER, which consent may be on such terms as the OWNER thinks.
SALE OF PEAK
a) The OWNER agrees not to sell PEAK during the Charter Period as set out on Page One of this Agreement.
b) Should the OWNER agree to sell PEAK after the signing of this Charter Agreement, but before delivery to the CHARTERER, the OWNER shall immediately, upon entering into an agreement for the sale of PEAK, give notice of such sale in writing to the CHARTERER. This information shall be kept in strict confidence by all parties to the Agreements.
c) Should PEAK be sold one of the following provisions will apply:
. i) The OWNER shall arrange for the Buyer to perform the Charter on the same terms and conditions by signature of a tri- partial Agreement.
Where the Charter is taken over by the Buyer on the same terms and conditions there shall be no penalty against the OWNER.
. ii) If the Buyer is unwilling or unable to fulfill the Charter Agreement then this Charter Agreement shall be considered as having been cancelled by the OWNER in accordance with these terms and conditions. All payments made by the CHARTERER shall be promptly repaid in full to him without deduction, and in addition liquidated damages calculated in accordance withthese terms and conditions (e), i, ii or iii, as appropriate, shall be paid.
a) Throughout the period of this Agreement the OWNER shall insure PEAK with first-class insurers against all customary risks for a Vessel of her size, value, and type ijcluding Permission to Charter. Third Party liability, including Water Skiers liabilities together with liabilities arising from the use by the CHARTERER of personal water craft, windsurfers, dinghies, or other water-sports equipment carried by PEAK is not insured by OWNER. CHARTERER shall have to take an insurance themselves. PEAK's insurance shall also cover War, Strikes, Pollution and include insurance of Crew against injuries and/or Third Party liabilities incurred during the course of their employment. The CHARTERER shall remain liable for any loss, damage or liabilities arising from any act of negligence of the CHARTERER or his Guests and not recoverable by the OWNER under his insurance.
b) All such insurances shall be on such terms and subject to such excess (deductible) as are customary for a vessel of this size, value, and type. Copies of all relevant insurance documentation shall be available on request for inspection by the CHARTERER prior to the Charter on reasonable notice to the OWNER, and shall be carried on board PEAK.
c) The CHARTERER should carry independent insurance for Personal Effects whilst on board or ashore and for any Medical or Accident expenses (including emergency transport evacuation) incurred.
d) The CHARTERER should be aware that neither Charterer’s Liability Insurance nor Cancellation and Curtailment Insurance are included in this Agreement.
Unless otherwise provided on this Agreement, the Security Deposit shall be held by the Stakeholder on the OWNER’s behalf 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, as confirmed by the Captain in writing to the Stakeholder, the Security Deposit shall be refunded without interest to the CHARTERER on the rst working day after the end of the Charter Period, or after settlement of all outstanding questions, whichever is the later.
a) FORCE MAJEURE
In this Agreement ‘force majeure’ means any cause directly attributable to acts, events, non-happenings, omissions, accidents or Acts of God beyond the reasonable control of the OWNER, the Crew, or the CHARTERER (including, but not limited to, strikes, lock-outs or other labour disputes, civil commotion, riots, acts of terrorism, blockade, invasion, war, re, explosion, sabotage, storm, collision, grounding, fog, governmental act or regulation, contaminated fuel, major mechanical or electrical breakdown beyond the Crew’s control and not caused by lack of maintenance and/or OWNER’s or Crew’s negligence). Crew changes and shipyard delays not attributable to the aforementioned causes, do not constitute force majeure.
b) OWNER, CHARTERER
Throughout this Agreement, the terms OWNER, CHARTERER and corresponding pronouns shall be construed to
apply whether the OWNER, CHARTERER is male, female, corporate, singular or plural, as the case may be.
In this Agreement VAT means Value Added Tax levied by a member state of the European Union.
d) WORKING DAY
Working Day is defined as a day when the banks are open for business in the country where the stakeholder is situated.
During the period of the Charter, the benefits, if any, from any derelicts, salvages and towage, after paying the Crew’s proportion, and a proportion of the Charter Fee during the time when PEAK is engaged in providing salvage assistance, and expenses during this time directly related to the salvage, shall be shared equally between the OWNER and the CHARTERER.
PAYMENT OF CHARTER FEES AND OTHER MONIES TO THE OWNERS
The Advance Provisioning Allowance (A.P.A.) shall be paid to the Captain, or to the OWNER for onward transmission to the Captain prior to embarkation, by Bank Transfer or cash. The Delivery and/or Re-delivery fees (if applicable) and any extraordinary expenses shall either be paid with the first payment to the OWNER or directly to the Captain.
The CHARTERER shall give notice of any complaint in the first instance to the Captain on board and note shall be taken of the time, date and nature of the complaint. The Captain shall inform the Owner as soon as practicable.
If, however, this complaint cannot be resolved on board PEAK then the CHARTERER shall give notice to the OWNER within twenty-four (24) hours of the event or occurrence unless it is impracticable due to failure or non-availability of communications equipment. The complaint may be made verbally in the first instance, but shall be confirmed as soon as possible in writing specifying the precise nature of the complaint.
When force majeure is invoked in relation to breakdown or disablement, the Owner will instruct the Captain or Owner’s representative to submit a detailed technical report, a copy of PEAK’s maintenance log, if applicable, and all relevant supporting documentation to the Charterer or Charterer’s representative.
ARBITRATION & LAW
a) This Agreement shall be governed by and construed in accordance with Dutch law and any dispute arising out of or in connection with this Agreement shall be referred to arbitration in Amsterdam.
The reference shall be to three Arbitrators. A party wishing to refer a dispute to arbitration shall appoint its Arbitrator and send notice of such appointment in writing to the other party requiring the other party to appoint its own Arbitrator within 14 calendar days of that notice and stating that it will appoint its Arbitrator as sole Arbitrator unless the other party appoints its own Arbitrator and gives notice that it has done so within the 14 days specified. If the other party does not appoint its own Arbitrator and give notice that it has done so within the 14 days specified, the party referring a dispute to arbitration may, without the requirement of any further prior notice to the other party, appoint its Arbitrator as sole Arbitrator and shall advise the other party accordingly. The award of a sole Arbitrator shall be binding on both parties as if he had been appointed by agreement.
Nothing herein shall prevent the parties agreeing in writing to vary these provisions to provide for the appointment of a sole Arbitrator.
Where the reference is to three Arbitrators the procedure for making appointments shall be in accordance with the procedure for full arbitration stated above.
(b) Notwithstanding the above, the parties may agree at any time to refer to mediation any difference and/or dispute arising out of or in connection with this Agreement.
The award rendered by the arbitration shall be final and binding upon both parties and may if necessary be enforced by the Court or any other competent authority in the same manner as a judgement in High Court.
If notice of arbitration proceedings is given by either party, the Owner, after receiving notification of such proceedings, shall not deal with those monies held by them without the agreement of both parties or in accordance with the order of the Arbitrators or their final award. The monies should be held in a designated client account. This account should be interest bearing where national banking rules permit. The Owner may, with the agreement of both parties, pay the monies into an Escrow Account jointly controlled by the accredited legal representatives of both parties pending the result of the arbitration.
Any notice given or required to be given by either Party to this Agreement shall be communicated in any form of writing and shall be deemed to have been properly given if proved to have been dispatched pre-paid and properly addressed by mail or courier service or email or by facsimile in the case of the OWNER, to him or to the Broker at their addresses as per this Agreement or, in the case of the CHARTERER, to his address as per this Agreement or, where appropriate, to him on board PEAK.