DI Yachting Services Terms and Conditions
Chapter 1 Definitions and interpretation
1.1. In the Terms and Conditions
“Business Hours” means between 09:00 and 17:00 GMT/BST on any week day, other than a bank or public holiday in England;
“Charges” means the amounts payable by You to diY under or in relation to the Agreement;
“Charter” means an agreement for the hire of the Vessel.
“Confidential Information” means (a) any information disclosed (whether disclosed in writing, orally or otherwise) by one party to the other party that is marked as “confidential”, described as “confidential” or should have been understood by the receiving party at the time of disclosure to be confidential; and (b) the financial terms and conditions of the Agreement;
“Control” has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.
“diY Client” means any Charterer as defined in any Charter, or member of such Charterers party.
“Effective Date” means the date that the Agreement comes into force as specified in the Statement of Services above or following the processes set out in Clause 2;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Minimum Term” means the period specified as such in the Statement of Services;
“Personal Data” has the meaning given to it in the Data Protection Act 2018 as modified, consolidated and/or replaced from time to time and including any subordinate legislation made under that statute or statutory provision;
“Schedule” means a schedule attached to the Agreement;
“Services” means all the services provided or to be provided by diY to You under the Agreement, including the Additional Services;
“Statement of Services” means the document incorporating these Terms and Conditions and signed by You and diY;
“Term” means the term of the Agreement;
“You” means You specified in the Statement of Services and “Your” shall be construed accordingly;
“Your Materials” all documentation, information, data, Personal Data, video or photographic files in whatever media such materials are provided; and
1.2. The Chapter headings do not affect the interpretation of the Agreement.
1.3. In the event of any conflict between the terms of this Agreement, the Statement of Services or any other terms incorporated by reference to this Agreement, such terms shall take precedent in the following order.
1.3.1. The Statement of Services;
1.3.2. Any incorporated terms as they apply to the subject matter of such terms; and
1.3.3. These Terms and Conditions.
Chapter 2 Agreement and Term
2.1. The Agreement shall be binding upon the parties once You and diY have both signed the Agreement. The Services shall be provided from the Effective Date until such time as the Agreement is terminated in accordance with Chapter 11.
2.2. Where these terms are accepted online; the advertising of the Services on diY’s website constitutes an “invitation to treat”; and Your order for the Services constitutes a contractual offer. No contract will come into force between diY and You unless and until diY accepts Your order.
2.3. Once in force, the Agreement will continue in force for the Minimum Term and shall renew for the same period as the Minimum Term on the anniversary of the Effective Date (an “Extended Term”), unless terminated earlier in accordance with Chapter 13.
2.4. Where You have selected different services in the Statement of Services they shall be governed by the relevant Schedule attached to this agreement and the relevant specific service description set out on the https://diyachting.co.uk/terms-of-agreement/ .
2.4.1. Different Services may have different payment terms set out in the relevant agreement. Such payment terms shall replace any payment terms in these terms and conditions as regards those specific Services.
2.4.2. In the event of any conflict or inconsistency between the terms published on the https://diyachting.co.uk/terms-of-agreement/ and any of the terms of this agreement (including the schedules), the published terms shall prevail
Chapter 3 Services
3.1. During the Term diY will provide the Services to You, in accordance with this Agreement.
3.2. diY may sub-contract the provision of any of the Services without obtaining Your consent.
Chapter 4 Your Materials
4.1. You grant to diY during the Term a non-exclusive licence to store, copy and otherwise use Your Materials for the purposes of providing the Services, fulfilling its other obligations under the Agreement, and exercising its rights under the Agreement.
4.2. Subject to Chapter 4.1, all Intellectual Property Rights in Your Materials will remain, as between the parties, the property of You.
4.3. You warrant and represent to diY that Your Materials, and their use by diY in accordance with the terms of the Agreement, will not: (a) breach any laws, statutes, regulations or legally-binding codes; (b) infringe any person’s Intellectual Property Rights or other legal rights; or (c) give rise to any cause of action against diY or You or any third party.
4.4. Any breach by You of this Chapter 4 will be deemed to be a material breach of the Agreement for the purposes of Clause 13.
Chapter 5 Charges
5.1. The Annual Marketing Fee shall be 10% of the Vessels highest weekly charter rate as set out in the Statement of Services and shall be invoiced upon the first charter being booked .
5.2. diY will issue invoices for Broker and/or Central Agent Commission when the charter contract is fully executed and first payment paid.
5.3. diY will issue invoices for Crew Management, Crew recruitment, Financial/Yacht Services any Additional Services and any agreed expenses at the end of each calendar month.
5.4. All bank transfer fees incurred in the provision of the Services shall be invoiced as expenses within the regular billing structure applicable to the services being provided.
5.5. You will pay the Charges to diY within 30 days of the date of issue of any invoice issued in accordance with this Chapter 5.
5.6. All Charges stated in or in relation to the Agreement are stated exclusive of VAT, unless the context requires otherwise. VAT will be payable by You to diY in addition to the principal amounts.
5.7. If You do not pay any amount properly due to diY under or in connection with the Agreement, diY may: (a) charge You interest on the overdue amount at the rate of 5% per year above the base rate of Natwest Bank Plc from time to time (which interest will accrue daily and be compounded quarterly); (b) claim interest and statutory compensation from You pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 and (c) remove the Vessel from any marketing platform and deny access to any of the Services until such time as the outstanding Charges are paid or the Agreement is Terminated.
5.8. diY may vary the Charges on and from any anniversary of the Effective Date by giving to You not less than 30 days’ written notice of the variation.
5.9. diY may set off any Charges (including bank transfer charges) against any monies held by diY as result of the provision of the Services and in accordance with each Charter Contract for the chartering of the Vessel.
Chapter 6 Warranties
6.1. You warrant and represent to diY that You have the legal right and authority to enter into and perform Your obligations under the Agreement.
6.2. You warrant and represent to diY that all Vessel Documentation is current, accurate and has not expired or ceased to be valid.
6.3. diY warrants and represents to You that: (a) it has the legal right and authority to enter into and perform its obligations under the Agreement; (b) it will perform its obligations under the Agreement with reasonable care and skill; (c) the Platform (excluding for the avoidance of doubt Your Materials) will not: (i) breach any laws, statutes, regulations or legally-binding codes; (ii) infringe any person’s Intellectual Property Rights or other legal rights; or (iii) give rise to any cause of action against diY or You or any third party, in each case in England and Wales and under English law; and (f) it will use industry standard processes and procedures to ensure that the Platform is and will remain free from viruses and other malicious software programs.
6.4. All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement.
Chapter 7 Indemnities
7.1. You will indemnify and will keep indemnified diY against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid upon legal advice in settlement of any disputes) suffered or incurred by diY and arising as a result of any breach by You of Chapter 4.3.
7.2. diY will indemnify and will keep indemnified You against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid upon legal advice in settlement of any disputes) suffered or incurred by You and arising as a result of any breach by diY of Chapter 6.2(c).
Chapter 8 Limitations and exclusions of liability
8.1. Nothing in the Agreement will: (a) limit or exclude the liability of a party for death or personal injury resulting from negligence; (b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party; (c) limit any liability of a party in any way that is not permitted under applicable law; or (d) exclude any liability of a party that may not be excluded under applicable law.
8.2. The limitations and exclusions of liability set out in this Chapter 8 and elsewhere in the Agreement: (a) are subject to Chapter 8.1; (b) govern all liabilities arising under the Agreement or any collateral contract or in relation to the subject matter of the Agreement or any collateral contract, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty;
8.3. diY will not be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings; loss of business, contracts or commercial opportunities; loss of or damage to goodwill or reputation; loss or corruption of any data, database or software; or any special, indirect or consequential loss or damage.
8.4. Neither party will be liable for any losses arising out of a Force Majeure Event.
8.5. diY’s liability in relation to any event or series of related events will not exceed the total amount paid and payable by You to diY under the Agreement during the 12 month period immediately preceding the event or events giving rise to the claim.
Chapter 9 Data protection
9.1. You warrant that You have the legal right to disclose all Personal Data that You disclose to diY under or in connection with the Agreement.
9.2. diY warrants that: (a) it will act only on written instructions from You in relation to the processing of any Personal Data performed by diY on Your behalf; and (b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by diY on Your behalf.
Chapter 10 Confidentiality
10.1. The Parties will: (a) keep confidential and not disclose Confidential Information to any person save as expressly permitted by this Chapter 10; (b) protect Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care;
10.2. Confidential Information may be disclosed by a party to its officers, employees, agents, insurers and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of Confidential Information disclosed.
10.3. The obligations set out in this Chapter 10 shall not apply to Confidential Information: (a) that is publicly known (other than through a breach of an obligation of confidence); (b) that is in possession of a party prior to disclosure by the other party; (c) that is received by a party from an independent third party who has a right to disclose the relevant Confidential Information; or (d) that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body, provided that the disclosing party must where permitted by law or applicable regulation give prompt written notice of the disclosure requirement.
Chapter 11 Termination
11.1. Either party may terminate the Agreement immediately by giving written notice to the other party if the other party: (a) commits any material breach of any term of the Agreement, and: (i) the breach is not remediable; or (ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or (b) persistently breaches the terms of the Agreement (irrespective of whether such breaches collectively constitute a material breach).
11.2. Either party may terminate the Agreement immediately by giving written notice to the other party if: (a) the other party: (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors; (b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; (c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement); or (d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing their own affairs, or is the subject of a bankruptcy petition or order.
11.3. Either party may terminate the Agreement by giving at least 90 days’ written notice of termination to the other party, expiring at the end of the Minimum Term or any Extended Term.
11.4. diY may terminate the agreement (a “diY Termination”) with immediate effect;
11.4.1. where You are an incorporated entity and there is a change of Control in the incorporated entity;
11.4.2. where the Vessel is sold by You.
11.5. diY may terminate the Agreement immediately by giving written notice of termination to You where You fail to pay to diY any amount due to be paid under the Agreement by the due date.
Chapter 12 Effects of termination
12.1. Upon termination of the Agreement, all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Chapters 1, 7, 9, 10, 12, 14 and 17.
12.2. Termination of the Agreement will not affect either party’s accrued liabilities and rights as at the date of termination.
12.3. In the event of a diY Termination You will remain liable for all Charges relating to the Commission on confirmed future Charter bookings and any cancellation fees associated with such future bookings; each as evidenced by a signed MYBA or CYBA Charter Contract for the chartering of the Vessel
12.4. Subject to Chapter 12.3., within 30 days following the termination of the Agreement, diY will: (a) irrevocably delete from the Platform all of Your Materials; and (b) irrevocably delete from its other computer systems all Confidential Information and return to You or dispose of as You may instruct all documents and materials containing Confidential Information.
12.5. diY may retain any document (including any electronic document) containing Your Confidential Information after the termination of the Agreement if: (a) diY is obliged to retain such document by any law or regulation or other rule enforceable against diY; or (b) the document in question is a letter, fax, email, order confirmation, invoice, receipt or similar document addressed to diY.
Chapter 13 Notices
13.1. Any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be delivered personally, sent by recorded signed-for post, or sent by email, for the attention of the relevant person, and to the relevant address or email address provided in the Statement of Services.
13.2. A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below): (a) where the notice is delivered personally, at the time of delivery; (b) where the notice is sent by recorded signed-for post, 48 hours after posting; and (c) where the notice is sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission and has not received a delivery failure report).
Chapter 14 Force Majeure Event
14.1. Neither You or diY shall be liable for any delay in perform our respective duties under the Agreement caused by a Force Majeure Event. Where a Force Majeure Event occurs, the affected party shall notify the other party without undue delay and shall implement any appropriate disaster recovery and business continuity plans.
Chapter 15 General
15.1. No delay, neglect or forbearance by either party in enforcing their rights under this Agreement shall be a waiver of or prejudice those rights.
15.2. If any part of this Agreement is held unlawful or unenforceable, that part shall be stuck out and the remainder of this Agreement shall remain in effect.
15.3. The Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
15.4. Each party hereby agrees that neither party may, without the prior written consent of the other party, assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any contractual rights or obligations under the Agreement.
15.5. The Agreement is made for the benefit of the parties, and hereby exclude to the fullest extent permitted by law, any rights of third parties to enforce or rely upon any of the provisions of this Agreement.
15.6. The Agreement constitutes the entire agreement between the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties in respect of that subject matter; and neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.
15.7. The Agreement will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement its subject matter or formation (including non-contractual disputes or claims).
Specific Services Description
The Manger shall, on request, provide to the Yacht Owner progress reports in connection with the performance of the Manager Services and shall make available to the Yacht Owner for inspection and audit, upon request from time to time; and subject to reasonable prior written notice, all documents in the Manager’s possession relating to the Vessel.
The Manager Services will include some or all the following modules below:
BASIC MANAGEMENT (includes):
(i) Consultancy – unlimited advice and consultancy on all aspects of the Vessel;
(ii) Financial Management – the Manager shall, in conjunction with the Yacht Owner, handle all the financial management of the Vessel and/or charter operations, through a dedicated client multi-currency portal. The Manager shall hold and manage funds, provide prepaid cards for the captain for yacht expenses and APA, reconcile the accounts, pay invoices in and collecting money and producing invoices going out. These tasks are carried out via online accounts packages allowing the Yacht Owner real time access, app access for expenses reporting, monthly and annual accounts submitted to the Yacht Owner. Budget creation and management for the Vessel to the Yacht Owner showing comparisons between actual maintenance, repair and refit expenditures and budgeted expenditures for such items;
Logistical/Operational Management – the Manager shall provide personal assistant services to the Captain helping with the day to day running of the Vessel, including berthing bookings, parts shipping, provisioning agents and bunkering, customs formalities and dealing with local yacht and shipping agents shipyards/ refits, communications services management;
MCA Coding Management – the Manager shall co-ordinate the management of the MCA Coding; new coding advice and assistance, equipment advice, survey preparation accompanied and organised survey, Managing Agent, and annual inspections. The Manager will also advise and prepare the Vessel and maintain documentation for MLC compliance.
Safety Management – Development of a Vessel-specific safety management system appropriate to the Vessel’s size and type having regard to the provisions of the MCA’s SCV Code applicable to the Vessel, where appropriate, provision of a shore-based (24/7) point of contact in the event of emergency, ensuring that correct certification is held by the Vessel and its crew, and that the Vessel otherwise complies with the Applicable Laws of her flag state, voyage monitoring, investigating accidents, incidents and hazardous occurrences, ensuring that all crew are appropriately trained and advising on safety-related crew training, and reviewing and administering planned maintenance systems.
Crew Management – the Manager shall provide offshore employment company setup, contract advice and management, certifications checked, salary advice, payroll management, payroll funding management, MLC Seafarer employment agreements, complaints and grievance procedure, designated person ashore, travel to the Vessel managed, orientation and crew handbook, emergency crew replacement and crew incident management and temporary, delivery and stand in crews organised and the Yacht Owner shall, if required, enter into a separate and specific crew management agreement covering recruitment and employment services.