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Terms & Conditions

YACHTPORT SA (PTY) LTD : TERMS AND CONDITIONS OF SERVICE


1. GENERAL
1.1. Upon acceptance of this quotation, this contract shall be subject to the following terms and conditions. The terms and conditions contained herein constitute the entire agreement between you (“the Owner”) and Yachtport SA Pty Ltd, its employees, agents and contractors (“Yachtport SA”) with respect to the mooring, lifting, transiting, hard standing and/or repair of your vessel referred to in the quotation (“the Vessel”).
1.2. No modification or waiver of any of the terms and conditions contained herein and no additional or different terms or conditions shall be effective unless (i) modified by Yachtport SA’s quotation or invoice, or (ii) agreed to in writing and signed by both parties.
1.3. The terms and conditions set out below shall become binding on the parties by signature of the quotation by the Owner and Yachtport SA.
1.4. All YPSA clients are to ensure that customs and clearance documents are completed and in order as per SARS regulations. YPSA cannot be held liable for incomplete paperwork.


2. PRICE, TAX AND DATE
2.1. The price reflected on the quotation is based on the material and labour costs in effect at the date of the quotation, and is valid for a period of 30 days from the date thereof.
2.2. The price includes VAT.
2.3. The scheduled date of the lift/ transit/ repair is approximate and is subject to change due to inclement weather conditions, failure or maintenance of equipment, or for any other operational reason.
2.4. No refunds will be given on deposits – parts thereof may be refunded at Yachtport SA’s discretion


3. TITLE AND RISK OF LOSS
3.1. All title and risk of loss in respect of the Vessel shall remain the
Owner’s.
3.2. The Owner shall not have any claims against Yachtport SA for loss or damage which may occur during the mooring, lift, transit, hard standing or repair of the Vessel, and indemnifies Yachtport SA against such claims in terms of Clause 6.


4. INSURANCE
4.1. The Owner shall ensure that he has suitable insurance policies covering public liability and property damage in respect of all claims which may foreseeably arise out the activities envisaged in this agreement, and in particular:
4.1.1. the Vessel shall be comprehensively insured with a minimum indemnity liability limit of R5 000 000 for third party liability and property damage;
4.1.2. The onus shall rest on the Owner to notify his Vessel’s insurer of the intended mooring/ lift/ transit/ hard stand/ repair on the Vessel;
4.1.3. Yachtport SA is not required to insure any Vessel for any mooring, lift, transit, hard stand or repair.

5. LIMITATION OF LIABILITY
5.1. The Owner or his employees, agents, suppliers, contractors or guests will not have any claim of any nature against Yachtport SA for any loss, damage or injury which any of them may directly or indirectly suffer for any reason.
5.2. In particular, but not limited to, the Owner shall not have any claim for consequential or other damages by reason of:
5.2.1. Any delay in the lifting or repairing of the Vessel; or
5.2.2. any latent or patent defect in the premises of and equipment utilised by Yachtport SA, in particular, but not limited to, any latent or patent defect in the mooring, lifting quay or hard stand;
5.2.3. any conditions over which Yachtport SA has no control, including without limitation, contamination, incorrect power supply, pressures in excess of recommended maximum, property damaged due to voltage, humidity or temperature outside the specified range, damage from gases or liquids, contamination of fluids, lubricants, air or oil systems, or repairs by unauthorised personnel;
5.2.4. any act or omission, or the failure of any material or equipment, committed or used by any of the Owner’s employees, agents or contractors;
5.2.5. the travel lift, crane, forklift, scissor lift, quay, hard stand or work shed at the premises of Yachtport SA not being suitable for docking, lifting, hard standing or repairing the Vessel;
5.2.6. any unreasonable act or omission by any other owner of any
other vessel docking or mooring at Yachtport SA;
5.2.7. any failure or interruption for whatsoever reason in the amenities and services provided by Yachtport SA;
5.2.8. any accident, loss, injury or damage sustained at the premises of Yachtport SA, to the Vessel, the Owner, his employees, agents, suppliers, contractors or guests;
5.2.9. consequential loss however caused, including but not limited to any loss of income, business, use, revenue, profit or goodwill;
5.2.10. any damages which occur due to deterioration during the period which the Vessel is at the premises of Yachtport SA.


6. INDEMNITY
6.1.1. The Owner hereby indemnifies Yachtport SA and holds Yachtport SA harmless from and against all claims, actions, damages, liability and expense in connection with any loss of life, personal injury and/or damage to property arising from and out of any occurrence in or on the premises of Yachtport SA, the quay, or the Vessel by the use of the Owner of the premises and services of Yachtport SA, or occasioned wholly or in party by any act or omission of the Owner, employees, agents, suppliers, contractors or guests.
6.1.2. The indemnity contained herein shall apply regardless of whether any claims, actions, demands or causes of action are based or alleged to be based on negligence, breach of implied warranty, strict liability, or reckless or intentional conduct.
6.1.3. In the event that Yachtport SA shall, without fault on its part, be made a party to any litigation commenced by or against the Owner, then the Owner shall indemnify Yachtport SA and hold it harmless against all claims and shall pay all costs, expenses and legal fees (including attorney and own client fees) reasonably incurred or paid by the Owner in connection with such litigation.
6.1.4. Notwithstanding any of the above, Yachtport SA undertakes and agrees that it shall erect, at its own cost and expense, suitable signs warning the public that Yachtport SA, the quayside, the lift/crane, hard stand and work shed are working areas and that the public enter at their own risk.


7. SUB-CONTRACTORS
Should there be any:
7.1. Any Sub-Contractor employed by the Owner to perform any maintenance or other work on the Vessel, while the Vessel is at the premises or moored at the quayside or moorings or hard stand of Yachtport SA, shall be required to sign acceptance of these standard terms and conditions prior to commencing any work on the Vessel.
7.2. The Owner shall ensure that such Sub-Contractor has adequate insurance in respect of the work to be undertaken on the Vessel at Yachtport SA.
7.3. Contractors/Sub-Contractors need to be approved by YachtportSA.


8. MOORING/HARDSTAND
8.1. The Owner shall:
8.1.1. Comply with all statutes, regulations and by-laws that may be applicable to Yachtport, and accordingly shall abide by all marina regulations as drawn up by Yachtport SA and/or the Harbour Master of Transnet National Ports Authority;
8.1.2. exercise proper control over all employees, contractors and guests at all times;
8.1.3. ensure that the Owner, his employees, contractors and guests park their motor vehicles in parking areas designated by Yachtport SA;
8.1.4. conduct himself (and his employees, contractors and guests) in conformity with the character of Yachtport SA. Should Yachtport SA notify the Owner of a failure in this regard, the Owner fail to remedy the matter forthwith, the Owner shall be
deemed to be in breach of this agreement, and Yachtport SA shall be entitled to exercise its rights and remedies under this agreement accordingly.
8.2. Yachtport SA reserves the right to vacate the berth (the delineated water space which has been allocated to the Vessel for mooring), for
such period as may be necessary to allow repairs, maintenance, re- arrangement of other vessels or for emergencies, provided that Yachtport SA will provide alternative mooring at a different berth.
8.3. The Owner shall not be entitled to make any improvements or alterations to the quayside.
8.4. The Owner agrees that he shall not do anything which will in any way affect the insurance held by Yachtport SA in respect of its business.
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8.5. The Owner shall not cede or assign or pledge any of its rights under this agreement, nor sub-let his berth, on any conditions whatsoever, without Yachtport SA’s prior written consent. In the event that the Owner does allow any vessel other than the Vessel to berth at Yachtport SA, the Owner shall deemed to be in breach of this agreement, and Yachtport SA shall be entitled to exercise its rights
and remedies under this agreement accordingly. In addition the Owner hereby indemnifies Yachtport SA against any claim whatsoever in relation to such other vessel.
8.6. The Owner or any sub-contractors will not be allowed to overnight or sleep on the vessel while is on the hard stand area.


9. FORCE MAJEURE
9.1. Yachtport SA shall not be liable for delays, failures in delivery or performance, damage to property or persons, due to acts of God, governmental authority or public enemy, fire, flood, strike, labour disturbance, epidemic, war, riot, civil disturbance, power failure, embargoes, shortages in materials, components or service, boycotts, transportation delays or any other cause beyond Yachtport SA’s control, or any actions taken by Yachtport SA to mitigate the effect or prevent any of the aforesaid.
9.2. In the event of such failure or delay, the contract shall not terminate, but the date of performance shall be extended for a period of time equal to the time lost by reason of the delay.


10. CANCELLATION AT DEFAULT OF BUYER
10.1. Yachtport SA may cancel this contract, without liability, effective on written notice to the Owner to that effect, on the occurrence of any of the following Events of Default:
10.1.1. The Owner’s failure to make timely payment of any sum
owing to Yachtport SA in respect of the contract;
10.1.2. the institution of any proceedings against the Owner for insolvency or sequestration, as the case may be;
10.1.3. failure of the Owner to maintain any insurance required herein as provided.
10.2. Upon cancellation, at Yachtport SA’s option:
10.2.1. The Owner shall pay for all services delivered in terms of the contract;
10.2.2. Yachtport SA shall retain any payments up to that date as liquidated damages;
10.2.3. Yachtport SA may declare any outstanding balance immediately due and owing and collect same from the Owner without further notice or demand, together with interest at the maximum rate permitted by law.
10.3. The rights of cancellation and remedies provided for in this clause are in addition to any other rights or remedies which Yachtport SA may have in law.


11. PAYMENT TERMS
11.1. Terms of payment are :
11.2. Deposit against quoted price (as specified on accepted quotation).
11.3. Balance on completion of works or services against Tax Invoice as quoted, or extended on Owners request as prior agreed to.
11.4. As security for payment Yachtport SA reserves the right to retain possession of the Vessel until there has been full and final settlement of all amounts outstanding in terms of the contract.
11.5. Interest to be charged at the current interest rate per month on the total outstanding amount.


12. SEVERABILITY
12.1. These terms and conditions shall be deemed severable and if any clause or part thereof is held to be invalid for any reason, the
remainder shall not be deemed invalid but shall remain in full force and effect.


13. GOVERNING LAW
13.1. This agreement shall be governed by South African Law, and the Owner hereby consents to the jurisdiction of the Magistrates Court Western Cape for the purpose of proceedings in terms of or incidental to this agreement, provided that Yachtport SA, at its own discretion, shall have the right to institute proceedings in the High Court Western Cape, and in that event the costs shall be determined on the scale applicable to the High Court Western Cape.


14. DISPUTE RESOLUTION
14.1. Should any dispute arise between the parties (“the Dispute”) arising from the terms of this agreement, then the parties shall endeavour to resolve the dispute by negotiation.
14.2. If the Dispute has not been resolved by such negotiation within 5 (five) days, then Yachtport SA shall have the right to submit the Dispute to arbitration to be administered by the Arbitration Foundation of Southern Africa (“AFSA”) or its successor, upon such terms as agreed between the Parties and the secretariat of AFSA, or failing such agreement, upon such terms as determined by the secretariat of AFSA.
14.3. Unless otherwise agreed in writing by both parties, any such arbitration in terms this clause shall be held in Cape Town.
14.4. Notwithstanding anything to the contrary in this agreement, either party shall be entitled to apply for and if successful, to be granted, an interdict from any competent court having jurisdiction.
14.5. This clause constitutes an irrevocable consent by each of the parties to proceedings in terms hereof, is severable from the rest of the agreement, and shall, notwithstanding the termination of the agreement, remain in full force and effect.


15. GENERAL
15.1. This agreement constitutes the entire agreement between the Owner and Yachtport SA and no alteration, cancellation or variation hereof shall be of any force or effect unless it is in writing and signed by both parties, who hereby acknowledge that no representations or warranties have been made by either of them, nor are there understandings or terms other than those set out herein.
15.2. No relaxation or indulgence shown by either party shall in any way prejudice its rights hereunder.
15.3. Each of the parties undertakes to do, and to procure the doing of other persons, and to refrain and procure that other persons will refrain from doing, all such acts to the extent that the same may lie within the
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power of such party and may be required to give effect to the imports and intent of this agreement.
15.4. The Owner, its employees, agents, suppliers, contractors or guests hereby agree to abide by the Environmental Management Plan applicable to Yachtport SA, as well the Health and Safety Regulations, laid down by the Occupational Safety and Health Act No 85, 1993, which are applicable, copies of which are available at the premises of Yachtport SA and hereby indemnifies Yachtport SA against any claims which may be made by any person in consequence of the Owner’s failure to comply with these provisions.
15.5. Should the quay where the berth is located, or the quay alongside the lift, hard stand or the work shed be destroyed or damaged to an extent which prevents Yachtport SA from fulfilling its obligations in terms of this agreement, then the Owner shall have no claim against Yachtport SA whatsoever, and Yachtport SA shall be entitled to determine whether
this agreement is terminated, and shall notify the Owner of its decision in that regard. Should Yachtport SA elect not to terminate the agreement then it shall reinstate the premises as quickly as possible, the contract period shall be extended, and the Owner shall not be
liable for payment of mooring rental (if applicable) for the period that he is deprived of beneficial occupation of the berth.


16. NOTICES
16.1. The parties choose as their domicilia citandi et executandi the addressed recorded on the quotation.

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