For the purpose of this agreement, and unless stated otherwise,
- The Company shall mean Quay Ventures Pty Ltd, t/a Eco BBQ Boats, any related corporations of it providing goods or services to the Hirer and any person acting with due authority of the Company.
- Hirer shall mean the person or persons named in the documentation for this agreement as the Hirer and any person signing or initialing this agreement (other than on behalf of the Company).
- Price shall mean the cost of the rental as agreed between the Company and the Hirer subject to the other terms of this agreement.
- Services shall mean all Services supplied by the Company to the Hirer.
- A reference to a Boat includes:
- the Boat;
- a reference to multiple Boats and other similar or related equipment;
- a reference to a proposed Boat which has been booked or provided (even in the absence of a signed agreement);
- No rule of construction applies to the disadvantage of the party preparing the document on the basis that it put forward this document or any part of it.
- Time is of the essence except where specific provision is made or the contrary intention appears.
- A reference to a person includes the person’s heirs, executors, administrators, successors, substitutes and assigns and this document is intended to be binding upon such persons.
- The singular includes the plural and vice versa and words importing a gender include other genders.
- Other grammatical forms of defined words and expressions have corresponding meanings.
- An agreement, covenant, representation, warranty or indemnity in favour of two or more persons is for the benefit of them jointly and severally.
- An agreement, covenant, representation, warranty or indemnity made by two or more persons is made by them jointly and severally
- Headings are for ease of reference only and do not affect the construction of this agreement.
- The terms appearing on the company’s document entitled “Boat Hire Agreement” apply and supersede the terms herein to the extent of any inconsistency.
- Where the context admits, the provisions of this document extend beyond any termination.
2. TERMS OF AGREEMENT
- Any further performance of this agreement after receipt of these terms and any subsequent or other offers or agreements between the Hirer and the Company for the supply of a Boat or of equipment, shall be on the terms and conditions contained herein unless otherwise agreed (including any terms on any part of this agreement entitled “Eco BBQ Boats – Hire Agreement”).
- Where the Hirer constitutes more than one person, the Hirer shall be jointly and severally liable for all amounts payable by the Hirer to the Company in connection with this agreement.
- The terms of this Agreement may not be altered except in writing. The Hirer acknowledges that the Company’s personnel and agents are not authorised to vary this agreement except in writing.
- Any variation to this agreement extending the period of the rental shall, unless otherwise agreed, be on the basis of the Company’s prevailing hourly rates applicable for the rental as at the date of variation.
- Except where required by mandatory operation of law, the Company shall not be liable to the Hirer or any other person for any personal injury, indirect, special or consequential loss or damage (including without limitation loss of profits, loss of opportunity or business interruption) suffered by the Hirer or any other person howsoever caused (including by negligence where allowed by law) by the Boat or the use thereof or any delay or non-performance and the Hirer does hereby waive and release the Company from any action, claim, loss or right which the Hirer may now or in the future have against the Company or its officers, agents, contractors and employees arising in connection with the Boat in any way whatsoever.
3. FEES AND PRICES
- The Hirer agrees to pay the hire fee to the Company online through the online booking system before the hire of the Boat or as otherwise demanded or required by the Company.
- The Hirer agrees to authorise a security deposit of $500.00 which will be returned upon after the boat hire only if the boat is returned on time and as per the hire agreement and the boat remains within the operating location directed by employees of Quay Ventures. The security deposit can be used to compensate damages and for incidents such as cleaning fees or return late fees.
- Should the boat not be returned within the agreed time stipulated and the Hirer is unable to be made contact with, it will be deemed the Hirer to have lost/stolen the boat and The Company will take steps to regain possession, including police action. An additional cost will be charged for a late return of $50 per 15 minutes if not prearranged.
- The Hirer must pay penalty notices if issued by any Authority, occurring during the hire period.
- If the Hirer has hired the boat as Couple (max 2 persons) or as Small Group (max 6 persons) they are not allowed to replace or add passengers. Boarding will be denied if this condition is not met, and hire fee will be forfeited. If the Hirer breaches this condition during the hire period, the hire will be terminated hire fee will be forfeited.
- The Hire Price will be determined by the Company’s prevailing price list at the time of this agreement.
- Any quotation provided by the Company shall be valid for a period of 28 days only.
- All products and services are sold subject to goods & services tax (GST) unless the products or services are classified as GST exempt.
- Payment will be made by such reasonable means as the Company may require.
- Vouchers and Gift cards are valid for 3 years from date of purchase and not redeemable for cash.
4. CONDITION OF THE BOAT and WARRANTY
- The Hirer must inspect the Boat upon receipt and delivery and notify the Company immediately of any concern the Hirer has about the Boat. The Hirer must notify to the Company any issue identified during the course of the hire as soon as practicable after it is identified.
- If the Hirer fails to inspect or notify the Company of any issue with the Boat when provided by the Company then in the absence of clear contrary evidence the Boat shall be deemed to be in good condition when so provided by the Company.
- If through no fault of the Hirer a material fault is identified in the Boat, then provided that the Hirer has complied with this agreement the Company shall repair the Boat, replace the Boat, or refund the balance of the rental fee (at the Company’s sole discretion) (“the warranty”).
- The warranty shall not be applicable in a situation where:
The Hirer has failed to follow instructions supplied by the Company in relation to proper use of the Boat;
The Boat or any Services have been used in a manner other than for their intended purpose;The Hirer wilfully or recklessly causes damage or fails to maintain the Boat; The Hirer continues to use the Boat after any issue with the Boat is identified, or would have been apparent to a reasonable person licensed or qualified for the use of that equipment; Any alteration is made to the Boat without the Company’s knowledge and consent; or, The fault has occurred because of circumstances outside the control of the Company.
- The Company shall not be liable for any losses caused by any delay in repairing or replacing the Boat.
5. HIRER’S OBLIGATIONS
- The Hirer acknowledges that they hire the Boat relying solely upon their own skill and judgment and not upon any representations or statements by the Company (including of a broad or general nature).
- The boat can only be controlled at all times by the Nominated Skipper, who has to be registered in the “Eco BBQ Boats – Hire Agreement”. The Nominated Skipper is required to be at least 21 years of age. The Hirer will not allow any other person than the Nominated Driver to control the boat.
- The Hirer is responsible and liable for all occupants and their actions at all time and he is required to advise all occupants of the risks and dangers associated with the use and operation of the boat prior to boarding
- The Hirer is responsible for the safety of all persons on board.
- It is a condition of hire that all persons on board are competent swimmers. Where a person is not a competent swimmer or less than 10 years of age, the hirer accepts responsibility and will ensure this person wears a suitable life jacket (PFD) at all times.
- Both, the Hirer and the Nominated Skipper must present their current and valid driver’s licence before boarding the boat.
- The Hirer and the Nominated Skipper acknowledges & understands all safety material and briefings presented by the Company.
- The Hirer shall not use the boat for any commercial activity without the consent of the Company provided in writing.
- The hired boat shall not be used for any illegal purpose such as carrying passengers or goods for hire or sublease. At no time shall the Hirer exceed the maximum persons onboard stated on the manufactures compliance plate. This was explained during the Safety Briefing & can also be found onboard in the Safety Management Plan.
- The hired boat shall not be used to push, propel or tow another boat, barge or any other thing and also not to be tied to another boat without the written permission of the Company.
- The Hirer is not allowed not remove or disassemble any parts (especially motor or batteries) from the boat.
- The Hirer shall not leave the boat and/or trailer unattended for any unreasonable length of time and shall be responsible for any losses suffered due to theft or other misadventure, which cannot be recouped by the owner under the provision of his insurance policy.
- The Hirer is aware that the Company shall not be responsible for any fines incurred or any breaches of WA Roads & Maritime Services regulations in respect to the boat whilst it is under the control or custody of the Hirer, or during the continuance of the term of the hire. All fines incurred whether they be Traffic, Department of Transport or Marines & Harbours etc. shall be paid by the Hirer.
- The Hirer will accept the consequences if he/she or any co-driver breach these conditions and will not be covered by insurance if found to be in breach of the conditions.
6. SAFE OPERATION
- Operation of the boat is only permitted inside the area of operation and during the operational hours stated by the Company. These limits are set for the safety of passengers and it is critical these rules are adhered to.
- All Western Australian marine safety and licensing rules apply. The boat is to be used and navigated so as to comply with the requirements of WA Roads & Maritime Services.
- The Hirer acknowledges and accepts that the use and operation of the boat is subject to inherent risks and dangers. The Hirer accepts those risks and agrees to indemnify the Company for any losses suffered by the Hirer, any passengers or any third parties as a result of the materialisation of those risks and dangers. The Hirer also undertakes to advise all passengers of the risks and dangers associated with the use and operation of the boat prior to boarding
- The Hirer will be given clear & concise instructions on:
- Correct & safe handling and navigation of the boat
- Correct & safe operation of motor and the battery system
- Stowage and use of life saving apparatus (Life buoy and PFDs) o Location & use of the fire extinguisher
- Location & use of the anchor
- Limits of operation (Marine Map)
5. The Hirer agrees:
- The boat will only be operated during the operational hours stated by the company
- The boat is not to operate in non-smooth waters (e.g. at sea).
- The boat will only be operated in areas specified in the Marine Map provided.
- Only the Nominated Skipper is allowed to control the boat.
- Tying boats together is not allowed.
- No animals or pets are allowed on board.
- No fishing, crabbing or swimming from the boat is allowed at all times. Littering in the boat and disposing rubbish into the water is not allowed. The Nominated Skipper will not drive the boat nor allow other Hirers/drivers
6. to drive the boat whilst under the influence of alcohol or drugs.
7. The Nominated Skipper is required to have a BAC of 0.00 (0.00 g/ 100 ml) at all times. The Nominated driver cannot consume any alcohol at all during the hire period. If the policy is breached, authorities will be notified and the Hirer will forfeit the security deposit.
8. All passengers can only drink moderately and should have a BAC less than 0.05 (0.05 g/ 100 ml) at all times.
9. Smoking or consumption of illegal drugs on the boat, the pen and on the whole premises is not allowed at all times. The use of e-cigarettes (electronic cigarettes) is also prohibited.
7. WEATHER CONDITIONS and BOAT BREAKDOWN
- Weather forecast monitoring is the responsibility of the Hirer and the Company to ensure safety of persons on board of the boat.
- The Hirer must not operate the boat in poor weather or sea/river conditions and must come back to the shore / jetty / pen as soon as possible or where such conditions are imminent. If these conditions are present before the hire proceeds a transfer of reservation will be granted.
- In the event of a boat breaking down or the onset of poor weather conditions, the Hirer shall notify the Company to arrange for the immediate return of the boat. In no event shall the Company be responsible for any consequential loss incurred by the Hirer in returning the boat.
8. DAMAGES and LITTERING
- The Hirer must pay for any damage or losses caused to the boat/equipment/trailer during the hire period. The Hirer agrees that he shall be held fully responsible for any and all loss of or damage to the boat or equipment or motor or trailer during the term of the “Eco BBQ Boats – Hire Agreement” whether caused by collision, fire, flood, vandalism, theft or any other cause, except that which shall be determined to be caused by a fault or defect of the boat or equipment or motor or trailer.
- The Hirer must report any Damage, Theft or Accident to the appropriate authorities and the Company immediately and substantiate those details with a Statutory Declaration within 48 hours of the incident.
- A cleaning fee will be levied if the boat is returned unclean. The Hirer will need to dispose the rubbish an uneaten food in the rubbish bags provided otherwise a cleaning charge of $ 50.00 applies and will be deducted from the security deposit.
9. CANCELLATION and RESCHEDULING of a BOOKING
- At the Company’s sole discretion, the Hirer may request a cancellation of the booking or rental of the Boat by giving written notice to the Company not less than 7 days (168 hours) prior to the booking date. Failure to provide such notice will result in the Hirer forfeiting any booking fee to the Company even if the Company accepts the cancellation. All cancellations will incur a $10 admin fee which will be deducted from the Hirer’s refund.
- At the Company’s sole discretion, the Hirer may request a rescheduling of the booking or rental of the Boat by giving written notice to the Company not less than 3 days (72 hours) prior to the booking date. The booking will then be transferred to another date within a 3-months-period. A refund of the Hirer’s booking fee is not possible. Failure to provide such notice will result in the Hirer forfeiting any booking fee to the Company.
- The Company may cancel delivery of the Boat Services at any time before delivery by giving notice to the Hirer or due to weather conditions or safety reasons before and during delivery. The Hirer then can reschedule date and time within a 3-month- period at no additional charge. If the Hirer decides not to reschedule the booking, The Company will refund the full hire fee to the Hirer.
- The Company shall not be liable for any direct, indirect, special, or consequential loss or damage whatsoever arising from such cancellation or rescheduling by the Company.
10. RETENTION of TITLE
1. The Company retains complete ownership and title in the Boat being hired at all times.
- The Hirer grants to the Company a general power of attorney granting the Company and its officers, employees and agents a right of entry to the Hirer’s vehicles, trailers or premises (including any vehicles, trailers or premises leased or licensed by the Hirer) should the Hirer fail to return the Boat to the Company upon such notice, for the purpose of taking possession of the Boat.
- The Hirer shall reimburse the Company for all costs and expenses associated with the Company’s actions under this clause.
- The Hirer shall do all things necessary to ensure that, where the Personal Properties Securities Act applies, the Company obtains and maintains a perfected security interest in the Boat.
- The Hirer may not sub-lease or sub-licence or otherwise encumber the Boat in any manner whatsoever.
- Without limitation to the other rights of the Company, the Hirer shall be responsible for reimbursing the Company for any insurance excess which may apply in the event that the Hirer breaches the conditions or causes loss or damage and an insurance claim is made by the Company.
- The Hirer will accept the consequences if he/she or any listed co-driver breach these conditions and will not be covered by insurance if found to be in breach of the conditions.
- The Hirer is aware that the Companies insurance does not cover the loss or damage to personal items; due to negligence or criminal action by the Hirer; resulting from overloading, speeding, overheating, seizure or misuse of the boat; when the boat is overdue for return; arising from more than one accident or event; and if at any time the driver of the boat is not the Nominated Skipper under this hire contract.
- The Company is under no obligation to the Hirer to maintain any insurance over the Boat. In certain situations, insurance obtained shall not be available to the Company, in which case the Hirer shall remain liable for any loss arising in connection with the Boat.
12. LIMITATION of LIABILITY
If permitted by law, the liability of the Company to the Hirer in connection with this agreement shall be limited to the amount paid by the Hirer to the Company pursuant to this agreement or the cost of providing the Boat/Services again (at the election of the Company).
- The Hirer acknowledges that the information provided by the Hirer to the Company may be supplied to a credit reporting or debt collection agency in the event that the Hirer fails to make payment as required under this agreement and may be supplied to other persons in order to give effect to the terms of this agreement.
- The Hirer agrees that the Hirer’s personal information may be used and retained by the Company for the following purposes and as required by law from time to time:
• Provision of the Boat/Services.
- Marketing of Boat/Services by the Company, its agents, distributors, or contractors, including by electronic message.
The Collection of monies owed to the Company.
- The Company may assign or sub-contract the whole or any part of this agreement without the Hirer’s consent.
- The Company shall not be liable for any breach of any provisions of this contract if the cause is outside of the reasonable control of the Company.
- This document and its interpretation, validity and all claims relating to any actions or omissions arising from conduct in connection with this document shall be governed by the laws of Western Australia and the parties agree to submit to the exclusive jurisdiction of the Courts of Western Australia.
- A waiver of any provision of this agreement by the Company must be in writing. No delay by the Company in exercising any right or power pursuant to this document will operate as a waiver of that right or power nor will any single or partial exercise of any right or power preclude any other or further exercise of that right or power.
- The warranties, undertakings, agreements and continuing obligations in this document do not merge on completion.
- No condition or provision of this agreement shall be deemed waived or excluded unless it is expressly stipulated to be so waived or excluded in writing by the Company.
To the extent permitted by law, the Hirer hereby indemnifies the Company against all losses and expenses which Company or its officers, contractors, employees or agents may suffer or incur (including dishonour fees, debt collection costs and legal costs on an indemnity basis) due to the failure of the Hirer to fully observe its obligations under this agreement, or any other willful or neglectful conduct by any person not directly connected with the Company in connection with the Boat.
16. CONSUMER LAWS
If any provision of this agreement would, but for this clause, be contrary to any laws, including any conditions, warranties, rights or remedies which the Hirer may have pursuant to the Competition and Consumer Act or otherwise then that clause is to be severed from this agreement and treated as void, but so that the remaining provisions shall not be affected in any way whatsoever.