1. This Agreement
- This agreement is between the Purchaser (“Purchaser”) who has booked a berth or mooring at a marina through berthsandmoor.com (“Berths and Moor”) and the owner or operator (“Proprietor”) of the marina (“Facility”) which has been licensed. E
- Each of the parties and details of the Facility and the proposed license period (“License Period”) are set out in the confirmation email (“Confirmation Email”) sent by Berths and Moor to the Purchaser and the Proprietor on completion of the booking.ii. These terms and conditions are available on and for when using http://berthsandmoor.com (“Site”), mobile applications (“App”) and social media or any other services we offer (“Services”) collectively referred to as platforms (“Platforms”).
- The Proprietor represents and warrants that they are the true Proprietor of the Facility or the person who is duly authorised to arrange licensing of the Facility. This agreement details the terms and conditions which apply between the Purchaser and the Proprietor relating to the Purchaser’s access and license of the Facility.
- The Purchaser agrees that they are responsible for ensuring that any person they allow to drive the vessel to the Facility complies with these terms and the Proprietor similarly agrees that they are responsible for ensuring that any person who assists them with managing a booking or is responsible for or authorised to manage the Facility or a booking complies with the terms of this Agreement.
- Berths and Moor is the Proprietor’s agent only for the purpose of this Agreement but is not in fact the Proprietor. This Agreement is between the Purchaser and the Proprietor (for details of the terms which apply between the Purchaser and Berths and Moor, please see the Purchaser agreement or for the terms which apply between the Proprietor and Berths and Moor, please see the Proprietor Agreement). Berths and Moor is an intended third-party beneficiary of this Agreement, but it shall have no obligations to the Purchaser or the Proprietor under this Agreement.
- The Proprietor grants a license to the Purchaser to use and occupy the Facility during the License Period as set out in the Confirmation Email. The Purchaser is not a tenant of the Proprietor and has not been granted exclusive possession of the Facility.
2. Booking and Payment
- The Purchaser and the Proprietor agree with each other to make all bookings for the Facility through Berths and Moor and acknowledge that Berths and Moor may handle the booking and process payments on the Proprietor’s behalf.
- All bookings and payments will be made in accordance with the Purchaser Agreement and Proprietor Agreement. The Purchaser acknowledges that all payments made to Berths and Moor are received by Berths and Moor as agent for the Proprietor.
1. Full amount on booking
2. If the Purchaser has paid the full amount for the booking to Berths and Moor at the time when the booking is made, then no further payments are due to the Proprietor. The Proprietor accepts that payment of the fees for the license to Berths and Moor represents a full discharge of the Purchaser’s payment obligations for that booking.
- All bookings are made subject to the Cancellation Policy as set out on the Site (“Cancellation Policy”) and the Purchaser and the Proprietor each agree to comply with the terms of the Cancellation Policy and authorise Berths and Moor to administer the Cancellation Policy, if necessary, by making refunds.
- The Purchaser must cancel their booking by logging on to the Platforms and processing the cancellation through the Site or App. Notice of cancellation will be deemed to be received at the point the Purchaser issues a cancellation request for their booking. Berths and Moor is not responsible for any transmission failures.
- If the Purchaser fails to cancel the booking using the Berths and Moor cancellation procedure the Purchaser will be liable for the full amount of the fees payable to the Proprietor and will not receive any refund whatsoever.
- In the event that there are exceptional circumstances beyond the reasonable control of the Purchaser and the Purchaser accordingly no longer requires the Facility, the Purchaser may request an exceptional cancellation and may receive a refund other than in accordance with the Cancellation Policy. The Purchaser must inform Berths and Moor of the exceptional circumstances before the License Period is due to start. The Purchaser and the Proprietor agree that whether or not a cancellation is due to exceptional circumstances and whether a refund is due will however be at the sole discretion of Berths and Moor who will decide on the amount of the refund (if any) and each party agrees that the decision of Berths and Moor will be binding.
- The Proprietor agrees to honour all bookings.
- If the Proprietor needs to cancel the Purchaser’s booking due to exceptional circumstances beyond the Proprietor’s reasonable control, the Proprietor agrees to inform Berths and Moor. The parties agree that Berths and Moor will be instructed to contact the Purchaser with proposals for suitable alternative Facility to be provided by another registered Berths and Moor Proprietor. Berths and Moor makes no guarantees or warranties that alternative parking can be found and accepts no liability arising from the failure of the Proprietor or the Purchaser to honour the booking or for the costs of alternative parking or other costs arising directly or indirectly as a result of the breach of any terms of this Agreement.
- The Proprietor agrees that if they need to cancel a Purchaser’s booking and the circumstances are not exceptional or not beyond the Proprietor’s reasonable control the Purchaser will be entitled to a full refund (if a suitable alternative cannot be arranged by Berths and Moor) and the Proprietor also agrees to discharge any additional cost which is payable by the Purchaser for suitable alternative parking arrangements (up to a maximum of £50 (GBP) per day if the Facility is in the UK or €75 (EUR) per day if the Facility is outside the UK).
- The Purchaser and the Proprietor agree that whether or not an Proprietor cancellation is due to exceptional circumstances beyond the Proprietor’s reasonable control and whether the Proprietor is responsible for the Purchaser’s additional costs will be determined at the sole discretion of Berths and Moor who will decide on the amount of the compensation (if any) and each party agrees that the decision of Berths and Moor will be binding.
4. Long-Term Booking
- A long-term booking is a booking for a period of more than six consecutive weeks.
- The Purchaser will be required to pay an initial booking deposit or the first month’s license charges at the time the booking is made. All subsequent payments due to the Proprietor must be paid every 30 days in advance. All payments due to the Proprietor from the Purchaser must be paid to Berths and Moor who are authorised to collect all such payments on the Proprietor’s behalf.
5. End of License Period
- The Purchaser must vacate the Facility and cease using the Facility by the end of the License Period. The exact departure time from the Facility will be as stated in the Confirmation Email.
- Unless the Proprietor has agreed to a later departure time or a further License Period (and the Proprietor agrees with the Purchaser that such agreement must be through Berths and Moor) the Purchaser will be liable to pay the full price for any additional time stayed. The Purchaser will be liable to pay:
i. the hourly rate for every additional hour stayed until this rate exceeds the cost of the daily rate. After this point the Purchaser will be charged at the daily rate for any additional time stayed. Any minutes under 1 hour will be charged as 1 hour.
ii. a £10 penalty charge
iii. any additional costs incurred by the space Proprietor as a result of the overstay up to a maximum of £100 or €125.
- The Proprietor shall authorise Berths and Moor to collect payment of any such additional fees from the Purchaser on behalf of the Proprietor.
- Berths and Moor may request an image with a visible timestamp of the vessel if there is a dispute regarding an overstay.
- If the Purchaser overstays by more than 1 day, then the Proprietor reserves the right to instruct a third party to remove the Purchaser’s vessel(s) from the Facility (and the Purchaser will be charged for the costs of any such action).
- Berths and Moor has full discretion about whether any fees or fines will be applied for overstays and Berths and Moor’s decision will be final.
7. Purchaser obligations
- The Purchaser has primary responsibility for their own safety and the safety of their vessel during the License Period. The Proprietor is not responsible for ensuring the safety of the Purchaser or the vessel.
- The Purchaser may not allow any person other than the Purchaser(s) named in the Confirmation Email and their Authorised Person(s) to use the facility. The Purchaser shall not allow any vessel other than the vessel specified in the Confirmation Email to occupy the Facility at any time during the License Period. This agreement is personal to the Purchaser and the Proprietor and may not be transferred to any other person. If anyone other than the Purchaser named in the Confirmation Email and their Authorised Person(s) attempts to use the Facility or if anyone attempts to use a different vessel in the Facility during the License Period, the Proprietor may refuse access to that individual and their vessel (even if they have the authority of the Purchaser).
- The Purchaser represents, warrants and agrees that they will:
1. keep the Facility clean, tidy and clear of rubbish and leave the Facility in the same condition as they find it;
2. park the vessel in the Facility without obstructing any adjoining or nearby berth/mooring or vessel;
3. notify the Proprietor or Berths and Moor of any damage to the Facility during the License Period as soon as it occurs;
4. not do or permit to be done on the Facility anything which is, or which may be or become a nuisance, (whether actionable or not) damage, annoyance, inconvenience or disturbance to the Proprietor or to the Proprietor or occupier within the;
5. not conduct any illegal or immoral activity within the Facility;
6. not conduct any business or commercial activity whatsoever within the Facility;
7. not use the Facility for any purpose other than for berthing or mooring;
8. maintain insurance on the vessel as required by applicable law;
9. indemnify and hold harmless the Proprietor against all loss, liability, damages, costs and expenses arising from the Purchaser’s negligence in connection with the Facility, except to the extent that such loss, liability, damages, costs or expenses are caused by the negligent acts or omissions of the Proprietor; and
10. act with courtesy towards the Proprietor.
- The Purchaser acknowledges that the Facility is someone else’s property and agrees not to access any other part of the property to which they have not been granted prior permission.
8. Proprietor obligations
- Although the Purchaser has primary responsibility for their own safety and the safety of their vessel during the License Period and the Proprietor is not responsible for ensuring the safety of the Purchaser or the vessel the Proprietor will not deliberately do or omit to do anything which will or is likely to put the Purchaser’s vessel or any persons at risk.
- The Proprietor shall ensure that the Facility is properly and fully described in the Berths and Moor listing and in particular if the Facility is not suitable for certain types of vessel or if there are any access restrictions this will be specified.
- The Proprietor will ensure that the Facility is available for the duration of the License Period and will not obstruct the Purchaser or prevent the Purchaser from parking in the Facility. The Proprietor will not allow any person other than the Purchaser or Authorised Person(s) and shall not allow any vessel other than the vessel specified in the Confirmation Email to occupy the Facility at any time during the License Period.
- The Proprietor represents, warrants and agrees that:
1. the Facility listing is true complete and accurate;
2. they will be available by telephone, SMS or email prior to or at the commencement of the License Period to direct the Purchaser to the Facility;
3. they will ensure that the Facility may be accessed easily by the Purchaser and is not obstructed at the start of or during the License Period;
4. they will ensure that the Facility is clean, tidy and clear of rubbish at the start of the License Period;
5. they will indemnify and hold harmless the Purchaser against all loss, liability, damages, costs and expenses arising from the Proprietor’s negligence in connection with the Facility, except to the extent that such loss, liability, damages, costs or expenses are caused by the negligent acts or omissions of the Purchaser; and
6. they will act with courtesy towards the Purchaser and assist and cooperate with the Purchaser in relation to locating the Facility.
9. Complaints, Claims and Liability
- Each party agrees that if any dispute arises concerning the Facility or otherwise during the License Period each party will attempt to resolve such dispute in the first instance by directly communicating with the other. Any agreement reached between the parties may be communicated to Berths and Moor and Berths and Moor is authorised to collect payments from either party (where possible) to give effect to such agreement.
- In the event that a dispute cannot be resolved directly it is agreed that either party may refer the dispute to Berths and Moor or make a complaint about the other. Both parties authorise Berths and Moor to deal with the dispute or complaint as it sees fit and agree to abide by any decisions they may make in such circumstances, including requiring refunds to be made or compensation to be paid (up to a maximum of £250 (GBP) if the Facility is in the UK or €300 (EUR) if the Facility is outside the UK).
- Clauses 9.1 or 9.2 are without prejudice to either party’s rights to bring or settle any claim against the other.
- Neither party will be liable to the other for any lost profits, loss of data, or costs of procurement of substitute goods or services or for any consequential, special, indirect, or exemplary damages whatsoever arising out of this agreement, the Facility or the License Period however caused and under any theory of liability (including negligence), even if advised of the possibility of such damages.
- The Proprietor’s liability for all losses (with the exception of wilful or reckless damage to property, fraud, or personal injury or death arising as a result of negligence) will be limited to the cost of obtaining a replacement Facility for the agreed License Period or the amount of the Facility fees and charges paid by the Purchaser plus £250 (GBP) if the Facility is in the UK or €300 (EUR) if the Facility is outside the UK, whichever is the higher amount.
- The Purchaser’s liability for all losses (with the exception of wilful or reckless damage to property, fraud, or personal injury or death arising as a result of negligence) will be limited to the amount of the Facility fees and charges paid or payable by the Purchaser plus £250 (GBP) if the Facility is in the UK or €300 (EUR) if the Facility is outside the UK.
10. General release
- Proprietor and Purchaser each hereby fully and forever release Berths and Moor and its partners, employees, attorneys, agents, successors, representatives, shareholders, parent companies, subsidiaries, affiliated companies and assigns, jointly and severally (collectively, the “Berths and Moor Parties”), and hereby fully and forever discharge and agree to hold the Berths and Moor Parties harmless from and against any and all claims and causes of action, in law or in equity, disputes, suits, debts, liens, rights, contracts, agreements, acts, promises, liabilities, obligations, demands, damages, losses, costs, fees (including, without limitation, those of attorneys) and expenses, of whatsoever kind or nature, whether known or unknown, suspected or unsuspected, which exist, may have existed or which may in the future exist between Proprietor or Purchaser on the one hand and the Berths and Moor Parties, or any of them, on the other hand in connection with this agreement.
- If you are domiciled in the UK the liability excluded under clause 10.1 excludes situations where fraud, wilful concealment or theft shall be shown to have taken place on our part and nothing in this agreement limits or excludes our liability for death or personal injury arising as a result of our negligence or the negligence of our employees, agents or self-employed contractors or for fraud or fraudulent misrepresentation.
- Each party agrees that they have the power and authority to enter into this agreement.
- Neither party will be entitled to assign or sub-contract their obligations under this Agreement (save for any duties which may be carried out by Berths and Moor as agent for the Proprietor as set out in this Agreement, the Purchaser Agreement and the Proprietor Agreement).
- Neither party will be liable to the other or be deemed to be in breach of these terms by reason of any delay in performing, or any failure to perform, any of their obligations, if the delay or failure was due to any event of force majeure beyond their reasonable control such as severe weather, subsidence, power or other utility cut-off, burglary, natural disaster, strikes, governmental action, terrorism, war or civil unrest.
- Save in the case of fraud these terms represent the entire agreement between the parties and supersede any previous marketing information, representations or agreements whether recorded in writing or otherwise.
- The parties agree that these terms are fair and reasonable in all the circumstances. However, if any provision of these terms is held not to be valid by a court of competent jurisdiction but would be valid if part of the wording were deleted, then such provision shall apply with such deletions as may be necessary to make it valid. If any of the provisions in these terms are held not to be valid the remaining provisions of these terms shall remain in full force and effect.
- If the Facility is located in the UK, these terms will be interpreted in accordance with the laws of England and Wales.
- If the Facility is located outside the UK, these terms will be interpreted in accordance with the laws of the state in which the Facility is located, without regard to its conflict-of-law provisions and both parties agree to submit to the personal jurisdiction of a state court located in the country in which the Facility is located.
- If either party breaches these terms and conditions and the other party decides to take no action or neglects to do so, then the other party will still be entitled to take action and enforce their rights and remedies for any other breach.