1.1 Any and all use of YACHTFOLIO is strictly subject to, and implies acceptance of, each one of these Terms and Conditions.
2.1 The following words have the following meanings:
Access Code: A password and user name which is unique to a particular Individual
End User. Subscription Application Criteria:
The Initial Application Criteria and the Existing Criteria. Central Agency:
A Subscriber Firm providing and maintaining Listing Information to YACHTFOLIO which has been appointed by the owner of a Yacht to find charters for that yacht.
Certificate of Appointment: A signed copy of the form attached at appendix A, or such reasonable alternative as the Company may reasonably accept, providing proof that the Central Agency has been appointed by the Yacht owner on terms complying with the YACHTFOLIO Guidelines, and that the Yacht owner gives permission for Yacht information to be made freely available to YACHTFOLIO Individual End Users via YACHTFOLIO. The Certificate of Appointment must be signed by an authorised signatory on behalf of the ultimate beneficial owner, or by the registered owner of the Yacht. Any authorised signatory must provide copy of any Power of Attorney used to sign on the beneficial owner's behalf.
Company: All Yachting SAS a company registered in France domiciled at 92/120, ave Eugene DonadeI - 06700 Saint-Laurent du Var 514 332 097 RCS. Antibes. Tel: +33 (0)
493 318 549 - Fax: +33 (0) 493 318 853.
E-brochure: An information sheet on a particular Yacht produced in digital format and available for viewing or downloading via a web-site or by email which consists of a minimum of 4 photographs depicting the subject Yacht, 1 of which must be of the Yacht running or underway.
Existing Criteria: The conditions for remaining a Subscriber Firm and/or Individual End User as set out in the Company's published 'Subscription Application Criteria' as amended from time to time.
Force Majeure Event: Any occurrence which hinders, delays or prevents a party in performing any of its obligations under this Agreement which is beyond the control of, and without the fault or negligence of, such party and which by the exercise of reasonable diligence it is unable to prevent or provide against including, but not limited to, war, civil war, act of God, fires, flood, epidemic, utility disruption, subsidence, strikes, lock-outs, insurrection or riots, embargoes, unavailability of raw materials or services, delays in transportation, changes to requirements or regulations of any governmental authority.
Individual End User: An individual who satisfies the criteria for access to YACHTFOLIO more particularly set out in the Application Criteria.
Initial Application Criteria: The conditions for becoming a Subscriber Firm and/or Individual End User as set out in the Company's published 'Application Criteria' as amended from time to time.
Liability: Actions, awards, costs, claims, damages, losses (including without limitation any direct or indirect consequential losses), demands, expenses, loss of profits, loss of reputation, judgments, penalties and proceedings and any other losses and/or liabilities.
Listing Information: Information posted on YACHTFOLIO by a Central Agency including Yacht booking calendar, specifications, photos, and E-brochures.
Services: YACHTFOLIO is a database which provides Individual End Users with Listing Information on fully crewed Yachts commercially made available for charter in compliance with their flag state regulations, and provides a billboard, information on special offers, and other services/information as provided from time to time.
Subscriber Firm: A company, firm or business that satisfies the criteria for access to YACHTFOLIO more particularly set out in the Application Criteria. Separate franchisees will be treated as separate Subscriber Firms. Where a Subscriber Firm has more than one office, at the discretion of the Company, a Certificate of Incumbency may be requested.
Third Party Stakeholder: A company, firm or business, other than a Central Agent or a Subscriber Firm that is also the owner of the relevant Yacht, that shall agree to hold on behalf of an owner and charterer the charter fee and other money payable by a charterer under a MYBA Charter Agreement.
YACHTFOLIO: The website located at URL www.yachtfolio.com through which the Services are provided.
Yacht or Vessel: A motor or sailing vessel of 24 metres in load line length and over commercially registered and in compliance with the Large Commercial Yacht Code (LY2) (or such other Code as shall amend or supersede LY2) or a small motor or sailing vessel (over 20 metres in load line length for mono hulls and over 15 metres in load line length for multi hulls) commercially registered and in compliance with the Small Commercial Vessel and Pilot Boat (SCV) Code (or such other Code as shall amend or supersede SCV) or the equivalent legislation in non Red Ensign jurisdictions regulating the commercial use of yachts and other commercial vessels in use for sport or pleasure.
3. Subscriber Firm and Individual End User Criteria
3.1 To preserve professionalism, integrity and standards, in order to become a Subscriber Firm, the relevant person must satisfy the Subscriber Firm Initial Application Criteria contained in the Application Criteria which are set by the Company from time to time. These may be changed by the Company at any time. Copies of the then current Application Criteria are available upon request.
3.2 For a Subscriber Firm to nominate Individual End Users from its organisation, each Individual End User must meet the Individual End User's Initial Application Criteria contained in the Application Criteria which are set by the Company from time to time. These may be changed by the Company at any time. Copies of the then current Application Criteria are available upon request.
3.3 A Subscriber Firm and/or Individual End User must satisfy the relevant Initial Application Criteria current at the time they first become a Subscriber Firm or Individual End User. Changes to these Initial Application Criteria in relation to new applicants will not affect existing Subscriber Firms and/or Individual End Users. Copies of the then current Initial Application Criteria are available upon request.
3.4 A Subscriber Firm and/or Individual End User must satisfy the relevant Existing Criteria, as amended by the Company from time to time.
3.5 However, if a Subscriber Firm undergoes a change of control and/or undergoes a significant change in the identity of its Individual End Users, then the Subscriber Firm must inform the Company immediately. The Company may at its discretionrequire the Subscriber Firm to re-submit an application to remain as a Subscriber Firm which will be judged against the Company's then current Initial Application Criteria for new Subscriber Firms.
3.6 A Subscriber Firm which engages self-employed individuals who meet the Individual End User Application Criteria may nominate them as Individual End Use rs. In all other instances Individual End Users must be employees of the Subscriber Firm themselves.
3.7 Without prejudice to any action, claim and/or proceeding the Company may bring against any Individual End User, a Subscriber Firm shall be liable for a ny misconduct, acts, omissions and/or breach of these Conditions by an Individual End User nominated by them as if they were the Subscriber Firm's own misconduct, acts, omissions and/or breaches.
3.8 A Subscriber Firm must at all times maintain current professional indemnity / errors and omissions insurance to cover itself and all Individual End Users nominated by it for an amount of not less than that specified by the Company from time to time. This is currently specified in the Application Criteria. Where a US based Subscriber Firm is unable to obtain professional indemnity/errors and omissions insurance then, at the discretion of the Company, this requirement can instead be satisfied by the Individual End Users within the Subscriber Firm having individual equivalent insurance cover in their own name or names for the same amount as specified by the Company. Proof of suitable cover must be provided to the Company on an annual basis.
3.9 Subscriber Firms' and Individual End Users' rights are non-transferable unless by express permission of the Company and only under exceptional circumstances.
3.10 A Subscriber Firm or Individual End User shall at the time of an application for access to YACHTFOLIO disclose to the Company any current or ongoing proceedings in which it is a party before any court, arbitration tribunal or professional body. The Company reserves the right to suspend or reject any application where it, considers, in its absolute discretion, that the nature of such proceedings and/or any judgment, award or finding arising therefrom renders the applicant unsuitable to be a YACHTFOLIO Subscriber Firm or Individual End User.
4. Confidentiality and Access Codes
4.1 Every Individual End User is issued their Access Code by the Company. This Access Code is strictly personal to that Individual End User and may not be divulged to or used by anyone else.
4.2 Allowing another individual to use the Access Code may be sanctioned by cancelling the access of the Individual End User, temporarily or permanently and/or other sanctions at the discretion of the Company.
5. Copyright and Restrictions
5.1 The reproduction of any documents published on YACHTFOLIO is only authorised for the purpose of providing information for commercial use by Subscriber Firms to their clients for the charter of Yachts listed publicly on YACHTFOLIO.
5.2 Information contained within Listing Information remains owned by the Subscriber Firm providing the information. Listing Information is provided by a Central Agency to YACHTFOLIO under temporary licence only and does not confer ownership of the information to YACHTFOLIO or any Individual End User. Ownership of copyright and any other intellectual property rights in the presentation of that information on YACHTFOLIO vests in and is owned by the Company.
5.3 The Company reserves the right to take legal action in any jurisdiction in the event of unauthorised reproduction, transmission or use of material published or displayed on YACHTFOLIO.
6. Yachts and Listing Information
6.1 The Company does not under any circumstances accept yachts for listing on YACHTFOLIO that do not qualify to be a Yacht or Vessel. Yachts and Vessels shall be commercially made available for charter, in compliance with their flag state regulations, fully crewed and maintained and equipped to a high standard for chartering appropriate to each Yacht's size and calibre. Any yachts below the defined qualifying lengths that were previously listed on YACHTFOLIO prior to the introduction of the current edition of the Terms and Conditions of Use (Charter) will have a grace period of six months before they will be removed from YACHTFOLIO.
6.2 Central Agencies shall hold a valid and current Certificate of Appointment for each Yacht that is listed by them on YACHTFOLIO.
6.3 A copy of a valid Certificate of Appointment shall be provided to the Company for each Yacht as proof of appointment, together with an e-brochure for listing the Yacht publically. The Certificate of Appointment must have been approved by the Company before the relevant Yacht is listed on the public section of YACHTFOLIO. The Company will accept scanned or faxed copies. A Yacht may only be listed on a private part of YACHTFOLIO before the Certificate of Appointment has been provided and approved by the Company. The original Certificate of Appointment must be provided to the Company, if requested by the Company, within 14 days of that request being made.
6.4 Yachts for which there is no valid Certificate of Appointment and/or e-brochure are not permitted to be listed publicly on YACHTFOLIO nor may they be mentioned on the billboards on YACHTFOLIO.
6.5 No Yachts may be listed by more than one Central Agency representing that Yacht. Where there is more than one Central Agency appointed in respect of a Yacht, the Central Agencies must agree between them which one of them will list the Yacht on YACHTFOLIO.
6.6 The Company has no responsibility for the accuracy of the Listing Information posted on YACHTFOLIO except to the extent that the Company has been negligent.
6.7 Central Agencies shall procure that all information entered by them in YACHTFOLIO, including but not limited to, Listing Information,
6.7.1 is accurate;
6.7.2 is provided to YACHTFOLIO in accordance with their Certificate of Appointment;
6.7.3 is not subject to any restriction on publication by the Yacht owner; and
6.7.4 is not defamatory or an infringement of third party rights.
6.8 Central Agencies agree to indemnify and hold harmless YACHTFOLIO from any consequences of any errors or omissions or infringement of third party intellectual property or other rights due to the Listing Information provided by them to YACHTFOLIO. The amount of this indemnity shall be limited for each claim to the same amount as the amount of professional indemnity/errors and omissions insurance which the Subscriber Firm is required to have by the Company.
6.9 An Individual End User who has doubts about information on the representation of a Yacht on YACHTFOLIO should first contact directly the Central Agency posting such information. If the Central Agency is not able to satisfy the Individual End User's enquiry, then the Individual End User should send details of their complaint to the Company in writing and provide the documents necessary to support the complaint.
6.10 No linking or publishing of Listing Information by an external source is permitted unless written permission is given in the Certificate of Appointment and the Company has given its written consent.
6.11 Linking to any part of YACHTFOLIO is also not permitted.
6.12 Only details regarding Yachts commercially available for charter and which are compatible with the Services may be published on YACHTFOLIO.
6.13 The Company expressly disclaims any liability for third party information or opinions posted on YACHTFOLIO.
6.14 A Subscriber Firm or Individual End User on a retail broker level will have access to the 'Enquiry Billboard' on YACHTFOLIO. This Billboard is to be used for extraordinary enquiries and special announcements only. The retail broker Subscriber Firm will use the normal channels for their YACHTFOLIO Yacht search.
6.15 Central Agencies shall ensure that all information on Yachts listed by a Central Agency shall be kept up to date at all times. This includes specifications, crew details, availability (booking calendar), cruising area, and rates, and any other information as required by YACHTFOLIO. No information or Yacht details should be added to YACHTFOLIO in a way that might disrupt the production of retail information from YACHTFOLIO.
6.16 Subscriber Firms must require Yacht owners to confirm that every Yacht listed fulfils all legal and other relevant conditions of its flag state and is fully legal to charter in all the cruising areas and during all periods for which the Yacht is offered on YACHTFOLIO.
6.17 If the YACHTFOLIO panel shall receive any complaints from a charterer or a retail broker as to the condition of a listed Yacht, the YACHTFOLIO panel should investigate such complaint following which the Company may in its absolute discretion remove the Yacht from listing on YACHTFOLIO. Nothing in Clause 6.17 shall impose any liability or obligation on the Company to inspect any Yacht or remove from the Central Agent and/or Owner the responsibility for its good condition and readiness for charter.
6.18 Information provided to the Company in relation to YACHTFOLIO is used only for the administration and provision of Services; the administration and operation of YACHTFOLIO; and any associated purposes. The Company does not sell information to third parties.
7. Yacht Removals
7.1 Listed Yachts that carry significant incorrect information or have not been updated for 6 months or more, may be removed by the Company from the public area of YACHTFOLIO.
7.2 Yachts for which it is established never undertake third party charter, will be removed from YACHTFOLIO at the absolute discretion of the Company as will any material that is known to the Company to be defamatory or an infringement of the intellectual property rights of a third party.
7.3 The Company may at its absolute discretion remove any Yacht from YACHTFOLIO where it becomes aware of unethical behaviour in respect of that Yacht on the part of the present or previous listing agent, the Yacht Captain, or the owner (including the beneficial owner) of the Yacht.
8.1 The Company will use its reasonable endeavours to maintain the Services but reserves the right to vary the Services at any time.
8.2 If the Services are totally unavailable for an extended period of 7 consecutive days or more due to circumstances within the control of the Company, then the Company will make a pro rata refund of any subscription fees for the relevant Services.
9. Payment of Fees
9.1 The consideration for use of the Services by Subscriber Firms/Individual End Users shall be the fees that were notified to the Subscriber Firm at the time of application to become a Subscriber, or as changed by the Company and notified to the Subscriber Firm from time to time after then. The Subscriber Firm shall pay those fees in the manner notified by the Company to the Subscriber Firm from time to time both regarding the amount s payable and due dates or other terms for payment, including but not restricted to any entitlement to refunds.
9.2 Interest shall be payable on any monies overdue for payment to the Company at a rate of 4% above the base rate of the Company's bankers from time to time (compounded on a monthly basis).
9.3 If any fees or other monies due to the Company from a Subscriber Firm are not paid by the due date then the Company may suspend or terminate that Subscriber Firm's access to the Services and/or remove their entitlement to any discount (with retrospective and/or future effect).
10.1 The Company shall have no Liability for additional damage, loss, liability, claims, costs or expenses caused or contributed to by continued use of defective Services after a defect has become apparent or suspected or should reasonably have become apparent.
10.2 A Subscriber Firm/Individual End User shall give the Company a reasonable opportunity to remedy any matter for which the Company is liable before a Subscriber Firm/Individual End User incurs any costs and/or expenses in remedying the matter itself.
10.3 The Company shall have no Liability for any:
10.3.1 loss of profits and/or damage to goodwill;
10.3.2 special damages;
10.3.3 aggravated, punitive and/or exemplary damages;
10.3.4 loss of communications;
10.3.5 consequential losses and/or indirect losses;
10.3.6 loss of and loss of use of and/or corruption of data;
10.3.7 loss of and loss of use of software;
10.3.8 security breach by any third party in relation to any communications network; and/or
10.3.9 business interruption, loss of business, loss of contracts, loss of opportunity and/or production.
10.4 The Company has no liability for any downtime in YACHTFOLIO and does not guarantee that YACHTFOLIO will be available for access by Individual End Users.
10.5 The Company reserves the right to withdraw and/or modify YACHTFOLIO and/or the Services at any time.
10.6 In no event shall the Liability of the Company to a user of YACHTFOLIO exceed ten times the annual fees paid by that user or €500,000, whichever is the lower.
10.7 Each of the limitations and/or exclusions in these terms and conditions shall be deemed to be repeated and apply as a separate provision for each of:
10.7.1 Liability in contract (including fundamental breach);
10.7.2 Liability for breach of duty of care (including negligence);
10.7.3 Liability for breach of statutory duty; and
10.7.4 Liability for breach of common law and/or under any other legal basis; except that the clauses above placing financial caps on the Company's Liability shall apply once in respect of all of the said types of Liability.
10.8 Nothing in these terms and conditions shall exclude or limit the Company's Liability for death or personal injury due to its negligence or any Liability which is due to its fraud or any other Liability which it is not permitted to exclude or limit as a matter of law.
10.9 All warranties, terms, conditions and duties implied by law relating to fitness, quality or adequacy are excluded to the fullest extent permitted by law.
10.10 The Company shall have no Liability for any delay or failure in performing its obligations or the provision of Services as a result of a Force Majeure Event.
10.11 If the event causing such delay or failure continues for in excess of 1 month the agreement formed by these terms and conditions may be terminated immediately on written notice at the option of the party not affected by the event.
11. Suspension or Termination of Service
11.1 Access to the Services by an Individual End User and/or a Subscri ber Firm may be terminated or suspended by the Company in the following circumstances.
11.1.1 With 30 days notice in the event of non-payment of subscription fees;
11.1.2 An Individual End User/Subscriber Firm contacting directly owners or captains of Yachts published on YACHTFOLIO by a Central Agency with a view to directly arranging charters unless such direct contact has been previously agreed with such Central Agency;
11.1.3 An Individual End User/Subscriber Firm giving or allowing access to YACHTFOLIO to unauthorised users;
11.1.4 Unprofessional and/or unethical behaviour as determined by the Company in its absolute discretion;
11.1.5 Conviction of a Subscriber Firm/Individual End User or one of its employees of a serious criminal offence, or a criminal offence involving dishonesty;
11.1.6 An Individual End User/Subscriber Firm is a party to current or on -going proceedings before any civil court, arbitration tribunal or professional body;
11.1.7 Any breach of these terms and conditions which is not remedied within 14 days of a written notice from the Company;
11.1.8 Any repeated or persistent breach of these terms and conditions;
11.1.9 Provision of false, incorrect or misleading information to the Company regarding the Individual End User, Subscriber Firm and/or Yachts; or
11.1.10 A Subscriber Firm is declared or becomes insolvent or bankrupt, has a moratorium declared in respect of any of its indebtedness, enters into administration, receivership, administrative receivership or liquidation or threatens to do any of these things, takes or suffers any similar action in any jurisdiction or any step is taken (including, without limitation, the making of an application or the giving of any notice) by it or by any other person in respect of any of these circumstances;
and if the access to Services is suspended or terminated for a Subscriber Firm that shall also apply to all the Individual End Users nominated by that Subscriber Firm. In any one of the above cases the Company reserves the right to apply other disciplinary action and to publish details of such action on YACHTFOLIO or elsewhere in its absolute discretion.
11.2 A party may immediately terminate the agreement formed by these terms and conditions by written notice if the other party:
11.2.1 fails to make any payment when due:
11.2.2 breaches these terms and conditions (and if remediable the breach has not been remedied within 14 days of receiving notice requiring it to be remedied);
11.2.3 persistently breaches any one or more terms of these terms and conditions;
11.2.4 ceases or threatens to cease to carry on business; and/or
11.2.5 is declared or becomes insolvent or bankrupt, has a moratorium declared in respect of any of its indebtedness, enters into administration, receivership, administrative receivership or liquidation or threatens to do any of these things, takes or suffers any similar action in any jurisdiction or any step is taken (including, without limitation, the making of an application or the giving of any notice) by it or by any other person in respect of any of these circumstances.
11.3 The Company may in its absolute discretion determine whether it is appropriate to suspend or terminate access to the Services. In accordance with the Company's dispute procedure (from time to time in force) in serious cases the Company may suspend access to the Services in the interim whilst making its determination.
11.4 The right of the Company to suspend or terminate access to YACHTFOLIO and the Services shall extend to the relevant Individual End User, any Subscriber Firm nominating that Individual End User and all other Individual End User's nominated by that Subscriber Firm.
11.5 The Individual End User agrees that notwithstanding any other provision of these Conditions the Company shall have no liability to the Individual End User as a result of termination of the Services.
11.6 Once access to YACHTFOLIO has been terminated, an Individual End User (under the umbrella of a Subscriber Firm) and/or Subscriber Firm shall be required to reapply for access to YACHTFOLIO. An application to regain access to YACHTFOLIO and the Services may not be presented until one year after the date of termination.
11.7 These terms and conditions and any disputes or claims connected with these terms and conditions and/or the Services shall be subject to English Law.
11.8 Subject to clause 11.11, in relation to any dispute arising out of, or in connection with, this Agreement the parties will follow the then current dispute procedure (if any) published by the Company in relation to YACHTFOLIO.
11.9 Subject to clause 11.11, and if not resolved under clause 11.8, any dispute arising out of, or in connection with, this Agreement shall be referred to arbitration in London (unless the parties agree a different location) by a single arbitrator appointed by agreement between the parties or, in default of agreement within 14 days, nominated on the application of either party by the President for the time being of The Law Society of England and Wales o r his delegate. The terms of appointment for the arbitrator shall be agreed between the parties and, in the absence of agreement within 14 days, the terms of appointment shall be negotiated and fixed on the application of either party by the President for the time being of The Law Society of England and Wales or his delegate. The parties to the dispute shall initially pay and bear the fees of the arbitrator equally. This clause shall not prevent either party seeking interim injunctive relief from a court of law.
11.10 Any arbitration shall be conducted in the English Language.
11.11 Clauses 11.8 and 11.9 shall not apply to any claim by the Company which is merely a debt collection action or which involves seeking interim injunctive relief and the Company shall be free to pursue any such claim in a court and jurisdiction of its choosing.
Certificate of Appointment (as per following page)
CERTIFICATE OF APPOINTMENT
Name of vessel:...................................................... IMO or Registration N°:.....................................
Hull configuration: □ mono-hull □ multi-hull Length: .........................................Metres/ feet
Commercial status:................................................... Flag:.......................................................................
It is hereby confirmed that ......(name of Owner/Owning Company).... (the Owner), Owner of the aforementioned yacht, has appointed ....... (name of central agent)..... as Central Agent (the Central Agent) for the charter of the Vessel, commencing ........(date of commencement of CA Agreement).....and that the central agency agreement incorporates the minimum points as set out in the Minimum Requirements For Charter Central Agency Agreements issued by All Yachting SAS and attached hereto.
Under this Certificate of Appointment, the Owner agrees to permit the Central Agent to list the Vessel on YACHTFOLIO on an exclusive basis.
OWNER / OWNING COMPANY CENTRAL AGENT
........................................................... Signatures ............................................................
........................................................... Name in Full ..........................................................
........................................................... Position ................................................................
........................................................... Company Name ......................................................
(Please provide company stamp if available)
........................................................... Address ...............................................................
........................................................... Date ....................................................................
Please ensure all handwritten information is legible. By signing this Certificate, the Broker confirms that the information provided is correct and that documentary proof of this could be provided if requested by the YACHTFOLIO Panel. If the YACHTFOLIO Panel should find that the Minimum Requirements are not being met, then sanctions maybe taken at the sole discretion of the Panel.)
All information provided is kept strictly confidential within AYSAS Admin
MINIMUM REQUIREMENTS FOR CHARTER CENTRAL AGENCY AGREEMENTSS