1. These Terms
- These terms and conditions apply to all services (“Services”) provided or arranged by Berths and Moor Ltd (“us”, “we” or “Berths and Moor”) to or for you, the recipient of the Services (“Purchaser” or “you”).
- These terms and conditions will apply at any time when you use this website http://berthsandmoor.com (“Site”), mobile applications (“App”) and social media or any other services we offer (“Services”) collectively referred to as platforms (“Platforms”) and by continuing to use the Platform you accept these terms and conditions (“Terms”) and they will apply to the agreement between you and us (the “Agreement”).
- These Terms may be amended from time to time. Any amendments or new terms and conditions will be available on our Platforms and the terms and conditions on the Platforms at the time you enter into a booking for a Facility or use any of other Services will be the ones that apply. You may terminate this Agreement if you do not wish to be bound by any such amendments but by continuing to use our Platforms you will be deemed to have accepted the new terms.
- Please note that these terms apply only to the provision of Services directly by us to you, namely the service we offer allowing you to book a stay a marina with our registered marina owners (“Proprietors”). These terms however do not apply to the use of the berth or mooring at a marina and its associated facilities (“Facility”). The granting of license to use a facility by Proprietors is dealt with under the terms of a Marina License Agreement and is directly with the Proprietor (please see clause 6).
- This Agreement is with you, the person using the Services and you will be responsible for ensuring that any person (an “Authorised Person”) you allow to use the Facility in respect of which you have been granted a license, complies with the terms of this Agreement and the Marina License Agreement. You agree that you are responsible for the conduct of any such Authorised Person.
- The Marina License Agreement and any additional restrictions included in a Proprietors listing are a contract directly between you and the Proprietor. We are not a party to that agreement and we will not be liable to you, the Proprietor or any third party for any breach of the Marina License Agreement or otherwise in relation to the use of the facility. We are not a real estate broker, agent or insurer. We have no control over the conduct of Purchaser or Proprietors and disclaim all liability in this regard to the fullest extent permissible by law.
- Registration is not necessary to be able to access our Platforms, but you will not be able to book a use of a Facility through us if you have not registered and do not have an account with us (“Account”).
- You will be asked to create a password when registering. We recommend that you keep your password confidential and do not disclose it to any third party. If you do so reveal your password to a third party and they then access our Platforms, they will be deemed to be acting as agent for you. We will not be held responsible for any action taken by any third party to whom you have disclosed your password. If you believe a third party has become aware of your password and is using your Account without authorization from you, please notify us immediately and we will suspend or close the Account at our discretion.
- You must supply a valid email address when registering so that we can email booking confirmations and other information relating to your use of our Platforms. We will not be held responsible if you fail to provide a valid email address and you do not receive a booking confirmation or other information from us that you might be expecting. If you become aware that you have supplied an invalid email address, please contact us immediately to correct the information we hold about you.
- We may suspend or close your account at any time if you are in breach of any term of this Agreement or any term of a Marina License Agreement. If we suspend or close your Account, you will not be able to use our Platforms any longer and may not be able to access all areas of the Site.
3. Enquiries, Bookings and Payment
1. If you wish to use a Facility advertised on our Platforms you will be able to do so through one of two methods: “Instant Booking” and “Booking by Agreement”. The listing will for a Facility will clearly indicate which method is to be used in relation to that particular booking.
2. Please note that the agreement relating to the use of a Facility is between you and the Proprietor and will be governed by the Marina License Agreement, a copy of which is available here. You should read the Marina License Agreement carefully. We act as the Proprietor’s agent for the purposes of forming binding agreements between you and the Proprietor but have no liability to you in relation to the Facility or the license other than as set out in this agreement. We are not a real estate broker, agent or insurer. We have no control over the conduct of Purchasers or Proprietors and disclaim all liability in this regard to the fullest extent permissible by law.
- Instant Bookings
1. If a Facility can be booked through Instant Booking you will be able to see its availability against its listing. If the dates you require are available, you may select the required dates and times. If you have not already registered with us, you will be asked to do so at this point.
2. Once you have selected the required dates and times we will request payment from you. We will also ask you to confirm that you accept the terms of the Marina License Agreement.
3. Once we have received payment and you have accepted the terms of the Marina License Agreement your booking will be confirmed, and you will have entered a binding agreement with the Proprietor for the use of their Facility. We will send you a booking confirmation email (“Confirmation Email”) which will include a contact telephone number for the Proprietor together with detailed instructions relating to the booking.
- Booking by agreement
1. If the Facility is not booked through Instant Booking you may make an enquiry as to the Facility’s availability (“Enquiry”). If you have not already registered with us, you will be asked to do so at the time you make your first enquiry.
2. You may make an enquiry by selecting dates and entering an enquiry from the listing page. By making an enquiry you are not making a booking and you are under no obligation to complete a booking for that Facility and neither we nor the Proprietor are under any obligation to provide the Facility to you as a result of an Enquiry.
3. We will pass your Enquiry on to the Proprietor of the Facility and will email you once the Proprietor has responded to confirm whether or not the Facility is available for the requested dates or period.
4. If the Facility is available and the Proprietor is willing to let you stay at the Facility we will then email of the details of your Enquiry, the dates or period of the booking (“License Period”) along with the Marina License Agreement that will apply to your use of the Facility and you will be invited to log-in on the Platform in order to confirm the details and in turn your booking, make payment and accept the terms of the Marina License Agreement.
5. Once we have received payment and you have accepted the terms of the Marina License Agreement your booking will be confirmed, and you will have entered a binding agreement with the Proprietor for the use of their Facility. As with Instant Bookings, we will send you a booking confirmation email (“Confirmation Email”) which will include a contact telephone number for the Proprietor together with detailed instructions relating to the booking.
- Payment in Full On Booking
1. For short and medium-term use (any License Period of 6 weeks or less) when we request payment from you we will generally request the full amount due in respect of your booking at the time of booking.
2. For long-term use (any Facility license of more than 6 weeks) we will require that you pay the first month’s license fee upon booking and we will collect a further month’s payment in advance each calendar month thereafter until termination of the license.
3. We are authorised by the Proprietor to accept payment from you on the Proprietor’s behalf.
4. Berths and Moorings
- You agree that the Site and App are platforms for advertising Facility’s owned by Proprietors and we have no responsibility for the Facility other than to provide the Services under this Agreement which includes administering and confirming Bookings and collecting payment on behalf of the Proprietor.
- Whilst we endeavour to ensure the Facility’s advertised on the Site are of a satisfactory quality we offer no warranty as to a Facility’s suitability for your requirements. Similarly, we will have relied on the Proprietor for details about the Facility given on the Site and whilst we use reasonable efforts to verify the accuracy of such information we offer no warranty in relation to these details.
5. Proprietors Responsibility
- We are not responsible for the location or condition of a Facility, its availability or the conduct of the Proprietor during the License Period. We act as agent only for the Proprietor and by making a Booking you are entering an agreement with the Proprietor under which the Proprietor is bound to provide you with the Facility, subject always to the Marina License Agreement.
- Unless stated otherwise in these Terms, once we have confirmed your Booking we have no further obligation to you in relation to the Facility, your License Period or your Booking and all responsibility lies with the Proprietor.
- We make great efforts to ensure that our Proprietors offer a good service and provide their Facility in accordance with your expectations, but we accept no responsibility and will have no liability to you if the Facility or the services of the Proprietor generally do not meet your requirements, or you find them unsatisfactory in any way. Your right of action or claim in such circumstances will be against the Proprietor but we may assist (at our discretion) in seeking to resolve a dispute between you and the Proprietor in accordance with clause 7.
6. The License
- You must only use the Facility at the times specified in the booking confirmation. If you use the Facility at any earlier or later time you may be liable to the Proprietor under the Marina License Agreement and your vessel may be towed. The Marina License Agreement contains fixed costs which are payable by you in the event of an overstay.
- You must only use the vessel for which the details have been notified to us. If you use a different vessel you may be unable to park. If you wish to change the vessel you are parking, you may amend your booking by logging in and selecting the ‘Amend booking’ button for that particular booking.
- During your License Period, if you have any concerns or queries about the Facility you must contact the Proprietor using the contact telephone number provided or our Platforms messaging system.
- Upon arrival at the Facility at the start of your License Period, you should inspect the Facility and ensure you are satisfied that it meets the description on the Platform. If you are not so satisfied you must contact the Proprietor immediately. Where possible, any dispute between you and the Proprietor relating to the Facility should be dealt with at the start of the License Period and without our involvement so that you may still fulfil your Booking. Where this does not prove possible, you agree that Berths and Moor may mediate (at its discretion) and in such circumstances clause 7 will apply.
7. Complaints and Disputes
- You agree that if you have any dispute with a Proprietor concerning them or their Facility during the License Period you will attempt to resolve it in the first instance by directly communicating with the Proprietor.
- In the event that a dispute cannot be resolved with the Proprietor directly, you may refer the dispute to us or make a complaint. Similarly, a Proprietor may refer a dispute to us. We will seek to resolve the dispute and we may require that you make a further payment to the Proprietor or we may require that the Proprietor refund payments it has received in relation to the relevant booking to you.
- In the event that we determine that a Proprietor should make a refund or other payment to you and if we are holding funds on behalf of the Proprietor we may make the refund on the Proprietor’s behalf (but we are not under an obligation to do so). You must raise any dispute with us as soon as possible. If the Proprietor has collected payment directly or if we have passed on your payment to the Proprietor, then you are responsible for recovery from the Proprietor.
- In the event that we determine that you should pay an additional amount to a Proprietor (e.g.=. if there is an overstay) then you authorise us to deduct payment from the debit or credit card details you have supplied (up to a maximum of £250 (GBP) per claim or dispute if you are domiciled in the UK or €300 (EUR) per claim or dispute if you are domiciled outside the UK).
8. Cancellation and Termination
- You agree to abide by the Cancellation Policy as stated on our Platforms (the “Cancellation Policy”) which may be updated from time to time.
- Furthermore, you agree that if a Proprietor wishes to cancel a Booking they may do so through us and our Platforms. If we are required to process a cancellation, we will do in accordance with the Cancellation Policy.
- If you have paid a booking deposit and are required to make further payments to a Proprietor under the Cancellation Policy, you authorise us to collect payment on behalf of the Proprietor using the credit or debit card details you have supplied. We also reserve the right to cancel your Account and terminate this agreement if you do not make payment within the timeframes specified in the Cancellation Policy.
- For the avoidance of doubt, it is the Proprietor’s responsibility to make any refund you are entitled to under the Cancellation Policy. However, if we are holding funds on behalf of the Proprietor we may (at our sole discretion) refund sums to you.
9. Your Obligations
- You must:
1. agree to observe and act in accordance with each Marina License Agreement;
2. not use the Facility or deal with the Proprietor in any way which could be deemed to be harmful to the business or reputation of Berths and Moor or do anything which might adversely affect our relationship with a Proprietor;
3. not attempt to contact a Proprietor directly until a Booking has been confirmed;
4. not attempt to book any Facility advertised on our Platforms other than through the booking procedure described in clause 3;
5. provide us with accurate information and ensure that all details that we hold about you (including your email address) are up to date and valid;
6. not use the Platforms in any way which may detrimentally affect the reputation of Berths and Moor or the use and enjoyment of our Platforms by any other users or third parties;
7. maintain insurance on the vessel as required by applicable law; and
8. where applicable, only provide us with credit or debit card details for which you are the sole account holder.
- You agree that you will not create any false account with Berths and Moor or use your account for any immoral or illegal activity or purpose including (without limit) malicious or fraudulent bookings or money laundering.
- You warrant that:
1. you have the power and authority to enter into this Agreement and any agreement with a Proprietor for the use of a Facility; and
2. you have a valid vessel license, vessel registration documentation and appropriate insurance coverage.
10. Termination and Suspension of the Agreement
- We may suspend your Account at any time should you be in breach of this Agreement. Furthermore, if you have not registered with us we may suspend your access to our Platforms if we believe you to be in breach of this Agreement.
- If we suspend your Account or access to the Platforms for any reason, we may refuse to provide you with any Services including the right to make any further Bookings. If you attempt to circumvent this clause by attempting to create a new account, we reserve the right to terminate this Agreement and any existing Account you may have.
- We may terminate this Agreement and your Account at any time if:
1. you are in breach of any term of this Agreement;
2. we suspect that you are about to commit a breach of this Agreement;
3. you become, or we suspect that you are about to become insolvent.
- Upon termination you will no longer be able to use our Services or make Bookings through us. If when we terminate this agreement you have any outstanding Bookings for which you have made pre-payment we may refund you accordingly. Any such refund is at our absolute discretion.
- In the event of termination, the terms of this Agreement will continue in full force, so far as such terms relate to existing Bookings or the consequences of any previous Booking (including terms relating to fees, disclaimers, liability and damage).
- We may in the future provide or arrange to provide insurance in respect of your use of a Facility. Other than any such insurance that we may provide or arrange to provide, you will be entirely responsible for any and all insurance that you may require for the purposes of using a Facility.
- You shall not attempt to solicit or perform services for or induce or attempt to induce, any customer, supplier, licensee or business relation of Berths and Moor or any Purchaser or other Proprietor through any communication including written and oral communication made by yourself or a third party to transact outside of the Platforms.
- If you choose to use the Platforms, you do so at your sole risk. You acknowledge and agree that Berths and Moor does not have an obligation to conduct background checks on any Facility and its Proprietor. The Platforms are provided “as is”, without warranty of any kind, either express or implied. Without limiting the foregoing, Berths and Moor explicitly disclaims any warranties of merchantability, fitness for a particular purpose, quiet enjoyment or non-infringement, and any warranties arising out of course of dealing or usage of trade. Berths and Moor makes no warranty that the Platforms will meet your requirements or be available on an uninterrupted, secure, or error-free basis. Berths and Moor makes no warranty regarding the quality of the Services or the accuracy, timeliness, truthfulness, completeness or reliability of any content obtained through the Platforms.
- No advice or information, whether oral or written, obtained from Berths and Moor or through the Platforms will create any warranty not expressly made herein.
- You are solely responsible for all of your communications and interactions with other users of the Platforms and with other persons with whom you communicate or interact as a result of your use of the Platforms, including but not limited to, any Facility Proprietors. You understand that Berths and Moor does not make any attempt to verify the statements of users of the Platforms or to review or visit any Facilities. Berths and Moor makes no representations or warranties as to the conduct of users of the Platforms or their compatibility with any current or future users of the Platforms or Services. You agree to take reasonable precautions in all communications and interactions with other users of the Platforms and with other persons with whom you communicate or interact as a result of your use of the Platforms, including, but not limited to, Facility Proprietors, particularly if you decide to meet in person.
14. Your liability and indemnity
- You agree to defend, indemnify and hold harmless Berths and Moor, its affiliates, and their respective officers, directors, managers, employees and agents (“Berths and Moor Indemnitees”) from and against any and all claims, damages, obligations, losses, liabilities, costs, and expenses (including but not limited to attorney’s and accountant’s fees) arising from: (i) your actions or omissions in relation to the Services, Platforms, the Facility or the Booking; (ii) your violation of any term of this Agreement; (iii) your violation of any third-party right, including without limitation any copyright, property, publicity or privacy right; (iv) any claim that any content uploaded by you to the Platforms caused damage to a third party; (v) your violation of any law; or (vi) your breach of the Marina License Agreement. This defence and indemnification obligation will survive this Agreement and your use of the Platforms. You hereby agree to waive the application of any law that may limit the efficacy of the foregoing agreement to defend and indemnify Berths and Moor Indemnitees.
15. Limitation of liability
- Berths and Moor will not be liable for any lost profits, loss of data, or costs of procurement of substitute goods or services or for any claim or demand against you by any other party. In no event will Berths and Moor be liable for any consequential, special, indirect, or exemplary damages whatsoever arising out of (i) errors, mistakes, or inaccuracies of the Platforms or Services, (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to and use of the Platforms or any booking with an Proprietor to the fullest extent permissible by law, (iii) any unauthorised access to or use of our secure servers and/or any and all personal, institutional, technical or other information stored therein, (iv) any interruption or cessation of transmission to or from the Platforms, (v) any bugs, viruses, Trojan horses, or the like, which may be transmitted to or through the Platforms by any third party, or for any loss or damage of any kind incurred as a result of your use of the Platforms, however caused and under any theory of liability (including negligence), even if advised of the possibility of such damages. You acknowledge that the amounts payable under this Agreement are based in part on these limitations, and You further agree that these limitations will apply notwithstanding any failure of essential purpose of any limited remedy. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
- For the avoidance of doubt, the liability excluded under clause 15.1 includes any loss arising from your dealings with any Proprietor or arising from the Facility and we shall have no liability to you whatsoever for any act or omission of the Proprietor in connection with the Facility or your Booking.
- If you are domiciled in the UK the liability excluded under clause 15.1 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.
- Our liability to you for all losses under this Agreement (subject to any liability in accordance with clause 19 below) is limited to the total amount paid by you to us (as agent for the Proprietor) under this Agreement.
- No claim may be brought against us in relation to this Agreement more than 12 months following the Booking to which the claim relates.
- You agree that the above exclusions of liability are reasonable in all the circumstances, especially in light of the fact that our Services include only the provision of the Platforms and responsibility for the Facility and fulfilment of a Booking lies solely with the Proprietor for whom we act only as an agent in a limited capacity.
16. Power connections and battery charging
- You must follow all user instructions in relation to the use of a Charge Point. It is your responsibility to ensure that the charging of your Vessel using a Charge Point is carried out safely so as to avoid injury to any person or damage to property. In particular, this includes but is not limited to ensuring that you take all reasonable care when charging your Vessel and that:
1.1.1 you have all necessary connector cables to enable your Vessel to be charged at a Charge Point;
1.1.2 the connector cable must be safely plugged into your Vessel and the positioning of the connector cable must not create a tripping hazard to any person;
1.1.3 the connector cable must not be unplugged from the Vessel before the plug is removed from the Charge Point; and the Vessel must not be moved with the connector cable still attached to the Charge Point.
- We are unable to guarantee that any Charge Point will be fully operational as these factors are outside of our control and depend on the actions of third parties, including the Proprietor. If you do experience any problems accessing or using any Charge Points, please contact us.
- You will be responsible for any damage caused to a Charge Point, any other property or for any injury to any person due to a breach of these Terms by you or your Authorised Person, or for your or your Authorised Person’s misuse or negligence or failure to comply with any user instructions or guidance in relation to a Charge Point and/or your Vessel. You must notify us immediately of any damage caused to a Charge Point.
- Please be aware that the Proprietor is responsible for the Charge Point (including for the supply of electricity to such Charge Point) and we have no responsibility or liability to you in respect of such Charge Point. If you or your Authorised Person suffer any damage, loss or injury whilst using a Charge Point, you must notify us immediately.
- Each of the parties warrants its power to enter into the Agreement and has obtained all necessary approvals to do so.
- Any notice to be served on either of the parties by the other shall be sent by pre-paid recorded delivery, registered post, fax or email to the address of the relevant party shown on at the start of this Agreement or such other physical or electronic address as may be notified by one party to the other.
- No term of this Agreement will be enforceable by any person that is not a party to it including (if you are domiciled in the UK) any enforcement through the Contract (Rights of Third Parties) Act 1999.
- We will be entitled to assign or sub-contract our obligations under this Agreement.
- Both parties shall be released from their respective obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the reasonable control of the parties or either of them renders the performance of the Agreement impossible.
- You agree that these terms are fair and reasonable in all the circumstances. However, if any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
- No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.
- Headings contained in this Agreement are for reference purposes only and should not be incorporated into this Agreement and shall not be deemed to be any indication of the meaning of the clauses to which they relate.
18. Governing Law and Jurisdiction
- Regardless of where you are domiciled you are contracting with BERTHS AND MOOR LTD and this Agreement shall in all respects be governed by the laws of England and Wales and shall be deemed to have been made in England.
19. Dispute Resolution
- Regardless of where you are domiciled any claims brought against Berths and Moor must be filed in a UK court. Any arbitration, mediation or other conciliatory process must be initiated and carried out in the UK. You agree to submit to the exclusive jurisdiction of the courts of England and Wales.
- Notwithstanding the parties’ decision to resolve any and all disputes arising under this Agreement through arbitration, Berths and Moor may bring an action to protect its intellectual property rights or to seek to obtain injunctive relief or other equitable relief from a court to enforce the provisions of this Agreement or to enforce the decision of the arbitrator.
- The arbitrator shall apply the substantive laws in accordance with clause 18 (Governing Law and Jurisdiction), shall issue a written decision, and shall have the power to award any legal remedies consistent with this Agreement except for punitive, exemplary or special damages.
- The parties will split the arbitrator’s fee.
- Disputes will be resolved only on an individual basis and will not be consolidated with any other claims, suits or other proceedings that involve any claim or controversy of any other party.
- You agree that the provisions in this clause will survive any termination of this Agreement.