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Terms and conditions of hire

All hirers must comply with the conditions set out by the company Finz Boat Hire. 

FINZ BOAT HIRE

TERMS AND CONDITIONS OF HIRE

 

NOTE TO HIRER:  THE COMPANY MUST GIVE THE HIRER AT LEAST ONE COPY OF THE HIRE AGREEMENT WHICH MUST BE KEPT IN THE VESSEL THROUGHOUT THE TERM OF THE HIRE AND PRODUCED ON DEMAND TO AN ENFORCEMENT OFFICER.

 

This Hire Agreement is made between the Company and the Hirer subject to the terms and conditions of the Hire Agreement.

 

  1. DEFINITIONS

    1. Boat Licence means a licence to operate the Vessel issued to the Hirer by the authority in which the Vessel is operated during the Hire Term.

    2. Checklist means the review of the Vessel, including cleanliness, safety equipment and boat maintenance.

    3. Company means Che Aud Pty Limited ABN 19 619 562 846, trading as Finz Boat Hire.

    4. Hire Agreement means these terms and conditions, the Hire Contract, the Checklist and Information Guide.

    5. Hire Contract means the document completed by the Hirer prior to or at the commencement of the Hire Term specifying the Vessel, the Hire Term and additional information relevant to the hire of the Vessel.

    6. Hirer means the person, entity or company signing the Hire Agreement.

    7. Hirer’s Account means a nominated debit card, credit card or pre-arranged and authorised charge account.

    8. Hire Term means the period of hire specified in the Hire Contract.

    9. Information Guide means a document comprising:

      1. emergency hire and contact details;

      2. conditions of hire;

      3. warning of risk document;

      4. Safety Management Plan;

      5. map and area specific conditions;

      6. radio procedures and contacts;

      7. copy of Boat Licence;

      8. any existing damage to boat and associated equipment;

      9. Vessel details and important numbers;

      10. schedule of maintenance items; and

      11. additional information.

    10. Marine Accident means an event causing or involving:

  1. the loss of a person from a ship;

  2. the death or grievous bodily harm to a person caused by a ship’s operations;

  3. the loss or presumed loss or abandonment of a ship

  4. a collision with a ship;

  5. the stranding of a ship;

  6. material damage to a ship;

  7. material damage caused by a ship’s operation;

  8. danger to put a person caused by a ship’s operation;

  9. danger of serious damage to a ship;

  10. danger of serious damage to a structure caused by a ship’s operation.

    1. Personal Effects means clothing, shoes, apparel, personal electronic items such as mobile phones and laptop computers, bags, provisions, cash and jewellery.

    2. Safety Management Plan means the document and appendices identifying operational, emergency and reporting procedures and appendices and which is included in the Information Guide.

    3. Vessel means the vessel described in the Hire Contract, including its hull and contents, motors including fuel tanks, trailer, equipment and accessories.

  1. VESSEL DESCRIPTION AND TERM OF HIRE

    1. The Company will let and the Hirer will take the Vessel for the Hire Term as described in the Hire Contract.

  2. PERSONS WHO MAY DRIVE THE HIRE VESSEL

    1. The Vessel may be driven during the Hire Term only by the persons named in the Hire Contract or in a supplementary skipper's sheet attached to the Hire Contract and will not permit any other person to drive or control the Vessel.

    2. Any person driving or controlling the Vessel must hold a current full valid Boat Licence appropriate for the Vessel while they are using the Vessel.

  3. USE OF THE VESSEL

    1. The Hirer shall not:

    2. use or allow the Vessel to be used for the transport of passengers for hire or reward;

    3. sublet or hire the Vessel to any other person;

    4. allow the Vessel to be used outside their authority;

    5. allow the Vessel to be used for the purposes of scuba diving, boom netting or parasailing or towing any object or persons in the air;

    6. operate the Vessel or allow it to be operated in circumstances that constitute an offence against any of Part 3 of the Marine Safety Act 1998 (NSW) (which relates to driving under the influence of alcohol or drugs);

    7. operate the Vessel or allow it to be operated in any race or speed test;

    8. operate the Vessel, or allow it to be operated, in breach of the Marine Safety Act 1998 (NSW) or any other Act, regulations, rules or bylaws relating to marine safety;

    9. operate the Vessel or allow it to be operated for the transport of more passengers or goods than the maximum specified in the certificate of loading and/or survey certificate, whichever is the lesser, for the Vessel;

    10. drive or allow the Vessel to be driven by any person if at the time of driving the Vessel the skipper does not hold a current full valid Boat Licence appropriate for the Vessel;

    11. drive or allow the Vessel to be driven beyond 15 nautical miles from the nearest land baseline without the prior written consent of the Company and conditions apply;

    12. allow the Vessel to be driven by any person who is not named or described in the Hire Contract as a person permitted to drive the Vessel;

    13. operate the Vessel or allow it to be operated to propel or tow any other Vessel;

    14. transport any animal in the Vessel;

    15. operate or allow the Vessel to be used in involvement with any illegal activity;

    16. operate the Vessel outside day light hours from sunset to sunrise;

    17. operate the Vessel on waters other than smooth, partially smooth or offshore class waters;

    18. operate the Vessel non-smooth waters (at sea) if the swell exceeds 2 meters and if winds exceed 20 knots;

    19. subject to sub-clause (q) not operate the Vessel at a speed exceeding 30 knots;

    20. operate the Vessel in poor weather or sea/river conditions or where such conditions are imminent;

    21. cross coastal bars unless the skipper has held a boat licence for more than a period of 3 years and has experience in crossing the particular bar a minimum of 10 times in varying conditions and can produce evidence of that experience, or signs a declaration at the time of hiring outlining that experience;

    22. cross a coastal bar without all passengers on board the Vessel wearing relevant life jackets;

    23. fail to log on /off with appropriate RVCP/AVCG (coast guard or coastal patrol in NSW Marine RESCUE) volunteer marine radio base; and

    24. refuel the Vessel with any fuel containing E10.

  4. HIRER'S OBLIGATIONS

    1. The Hirer shall be responsible at all times during the Hire Term and shall ensure that:

    2. all reasonable care is taken when driving the Vessel;

    3. the safety of the Hirer and any passengers in the Vessel is maintained throughout the Hire Term;

    4. only the fuel type specified for the Vessel will be used, the Vessel will be tested on return to ensure that there is no E10 fuel present;

    5. the Vessel is secure at all times when it is not in use and the keys kept under the Hirer's personal control at all times;

    6. the distance recorder or speedometer if available are not interfered with;

    7. no part of the engine, transmission, braking or suspension systems are interfered with;

    8. should a warning light be illuminated or the Hirer believes the Vessel requires mechanical attention, the Hirer will stop driving and advise the Company immediately;

    9. all skippers authorised to use this Vessel during the Hire Term are aware of and comply with the terms outlined in the Hire Agreement;

    10. any authorised skipper carries their Boat Licence with them in the Vessel at all times and will produce it on demand to any enforcement officer;

    11. weather forecast monitoring is carried out throughout the Hire Term; and

    12. in the event that the Vessel is engaged in water skiing, a competent observer is on board the Vessel.

  5. OWNER'S OBLIGATIONS

    1. The Company shall supply a Vessel in a safe and well-maintained condition.

    2. The Vessel will be provided with a full tank of fuel.

    3. The Vessel will be supplied with life jackets in numbers consistent with the number of persons identified in the Hire Contract.

    4. The Safety Management Plan will be onboard the Vessel at all times.

  6. VESSEL REPAIRS AND ACCIDENTS

    1. If the Vessel is involved in a Marine Accident, is damaged, breaks down or requires repair or salvage, regardless of cause, the Hirer shall notify the Company of the full circumstances by telephone immediately or in the event of any emergency in accordance with the Emergency Procedures contained in the Information Guide.

    2. The Hirer shall complete the Vessel Incident Form.

    3. The Hirer shall not arrange or undertake any repairs or salvage without the Company's authority except to the extent that repairs or salvage are necessary to prevent further damage to the Vessel or to other property.

    4. If the Vessel requires repair or replacement, the decision to supply another Vessel to the Hirer or arrange for the Hirer to return to the location where the Hire Term commenced is at the Company's sole discretion.

    5. The Hirer will not dispose of any damaged property and must return any damaged property to the Company immediately in the event of an Marine Accident or as soon as practicable thereafter.

    6. The Hirer will not make any admission of liability in relation to any Marine Accident or damage to the Vessel.

  7. PAYMENTS BY HIRER

    1. The Hirer shall pay the Company for the hire of the Vessel the sum or sums specified in the Hire Agreement; and authorises the Company to charge all amounts payable to the Hirer's Account.

    2. In addition to the payment specified in clause 4.1 above, the Hirer acknowledges that they shall be liable at the end of the Hire Term to pay to the Company any applicable additional charges payable at the end of the Hire Term. These include, but are not limited to:

  1. a fee to cover additional skippers;

  2. fuel charges if the Vessel is not returned fully refuelled;

  3. the cost of removing fuel found to contain E10 if refuelled by the Hirer;

  4. charges for late return of the Vessel;

  5. charges for damage to or repair of the Vessel (subject to the other terms of the Hire Agreement); and any enforcement charges relating to such damage or repairs (including legal costs);

  6. charges for cleaning the Vessel's interior if the Vessel is returned in an excessively dirty condition that requires extra cleaning. This includes, but is not limited to, spillage of fluids, food, vomit, other stains, and unpleasant odours;

  7. infringement fees;

  8. the administration fees as specified in the Hire Agreement; and

  9. any surcharges in connection with the use of a debit or credit card by the Hirer.

    1. The Company will charge the amounts set out in clauses 4.1 and 4.2 above to the Hirer's Account during or after the Hire Term is completed, or the Hirer may pay such charges as agreed with the Company, such choice to be at the Company's sole discretion.

    2. If the Hirer fails to pay any money due under or in connection with the Hire Agreement within 14 days of the date by which the Hirer was required to pay the money, the Company may, without prejudice to any other rights or remedies the Company may have or be entitled to, charge the Hirer and the Hirer must pay all additional costs as outlined below:

  1. interest at 4% (compounded daily) on the total amount owing from the expiry of 14 days from the date on which the Hirer was required to pay the money to the date of payment; and

  2. all costs incurred by the Company for the collection of the unpaid money by a debt collection agency or other external or legal agency

    1. If the conditions referred to in clause 4(p), (q) and (r) are present immediately prior to the Hire Term commencing, the Hirer will be entitled to transfer the Hire Term to another date subject to the availability of the Vessel and subject to clause 15.

    2. All charges are exclusive of GST unless stated otherwise.

  1. RETURN OF VESSEL

    1. The Hirer shall, at or before the expiry of the Hire Term, deliver the Vessel to the agreed location described in the Hire Agreement or obtain the Company's consent to the continuation of the hire (in which case the Hirer shall pay additional hire charges for the extended Hire Term at a minimum of $75 per hour). If the Hirer does not comply with this clause, and does not immediately return the Vessel, the Company may report the Vessel as stolen to the Police and the Hirer must compensate the Company for either the full cost of the Vessel, or all additional costs and losses incurred up to the time that the Vessel is recovered by the Company.

    2. The Vessel will be refuelled in accordance with clause 4.1(v).

  2. LIABILITY FOR VESSEL

    1. The Hirer is liable for:

      1. any loss of, or damage to, the Vessel and its accessories unless not caused by the negligence of the Hirer;

      2. returning the Vessel to the Company in the same condition at the commencement of the Hire Term;

      3. any consequential damage, loss or costs incurred by the Company, including salvage costs, loss of ability to re-hire and loss of revenue;

      4. any loss or damage of whatsoever kind arising from the operation of the Vessel outside or beyond the geographical limits specified in the Hire Agreement;

      5. any loss of, or damage to, vessels and property of third parties, arising during the Hire Term;

      6. exercising due diligence in the operation of the Vessel throughout the period of hire; and

      7. any loss or damage whatsoever whether directly or indirectly arising from or connected with scuba diving, boom netting or parasailing.

    2. The Hirer acknowledges and accepts that the use and operation of this Vessel, including for the purposes of water skiing, swimming, towing a tube, and other such like activities, is subject to inherent risks and dangers. The Hirer accepts those risks and agrees to indemnify the Company of the Vessel 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 Vessel prior to boarding. The Hirer acknowledges and understands all safety material and briefings that have been presented.

    3. The Hirer will not permit more than four (4) passengers onboard the Vessel during the Hire Term.

  3. LIABILITY AND INDEMNITY

    1. The Hirer acknowledges that it will be completely liable :

    2. at any time when the Vessel is under the control of a person under the influence of alcohol or any drug;

    3. at any time when the Vessel is in an unsafe or unseaworthy condition by reason of the Hirer’s Contract during the Hire Term, that caused or contributed to the damage or loss, and the Hirer was aware or should have been aware of the unsafe or unseaworthy condition of the Vessel;

    4. at any time when a mechanical failure breakdown or breakage occurs and/or an electrical or electronic failure or breakdown occurs that is the result of improper use of the Vessel. This exclusion also applies to damage to the engine directly resulting from any mechanical failure breakdown or breakage, but does not otherwise apply to resulting damage to other parts of the Vessel;

    5. at any time when the Vessel is used for the purpose of swimming, water skiing, towing a tube or other similar recreational item or activity and for the items used in the activity and any consequences whatsoever arising therefrom;

    6. at any time when the Vessel is driven in any race or speed test;

    7. in the event the Vessel is driven at a speed of greater than thirty (30) knots;

    8. at any time when the Vessel is driven by anyone not named or described in the Hire Agreement as a person permitted to drive the Vessel;

    9. at any time when the Vessel is driven by a person not in possession of a Boat Licence;

    10. at any time when the Vessel is wilfully or recklessly damaged or lost by the Hirer or a person under the Hirer's authority or control;

    11. at any time when the Hirer commits a navigational offence while driving the Vessel;

    12. at any time when the Vessel is loaded or is being loaded in excess of the manufacturer's specifications;

    13. at any time when the Hirer fails to stop or remain at the scene following the occurrence of an accident where required to do so by law;

    14. for any fine or penalty imposed as a result of prosecution for breach of any law;

    15. for any damage to the Vessel other than ordinary wear and tear to the Vessel;

    16. for any Personal Effects onboard the Vessel and for any loss or damage thereto;

    17. at any time when the Vessel is being driven beyond 15 nautical miles seaward without the prior written company consent, or beyond 30 nautical miles at anytime of the shore nearest baseline; or

    18. at any time when the Vessel was operated beyond the Hire Term or any agreed extension of the term, or at any other time or in any other circumstances notified by the Company to the Hirer.

    19. The Hirer shall indemnify and hold harmless the Company against all loss and damage arising from any breach of the Hirer’s obligations in the Hire Agreement.

    20. The Hirer shall indemnify and hold harmless the Owner against any loss, damage, personal injury or loss of life suffered to any property by any person as a result of or incidental to the operation of the Vessel.

    21. The defences and limits of liability provided in this Hire Agreement shall apply in any action against the Company whether founded in contract or tort or otherwise.

  4. LIMITS OF LIABILITY

    1. The Company’s liability in relation to any incident or occurrence shall not exceed the sum of AU$10 million including legal costs and expenses.

    2. The liability of the Company arising out of any one incident for breach of any right or guarantee the Customer may have under the Competition and Consumer Act 2010 and the Australian Consumer Law, or comparable legislation in each of the States and Territories of Australia, or howsoever arising is limited to any of the following as determined by the Company:

  1. the supplying of the services again; or

  2. the payment of the cost of having the services supplied again; or

  3. the value of the goods the subject of the services at the time the goods were received by the Company,

whichever is lower.

  1. INSURANCE

    1. The Hirer is advised that the Vessel is insured for legal liability subject to certain exclusions.

    2. In the event the Hirer breaches any provision of the Hire Agreement such that the Owner’s insurance does not apply, the Hirer accepts liability for any claim, loss or damage arising from the Hirer’s breach of the Hire Agreement.

  2. NAVIGATIONAL OFFENCES

    1. All penalties related to navigational and/or marine safety offences are the responsibility of the Hirer and the Company may charge the Hirer's Account for any navigational and/or marine safety offence infringement fees incurred by the Hirer. The Company undertakes, in the event that the Company receives notice of any navigational and/or marine safety offenses incurred by the Hirer, to send a copy of any such notice to the Hirer as soon as is practicable and to provide the necessary information to the relevant issuing authority for such notices to be directed to the Hirer. The Hirer has the right to challenge, complain about, query or object to the alleged offence to the issuing enforcement authority and has a right to seek a court hearing.

    2. The Company may also charge an administration fee of $30 plus GST to cover the cost of processing and sending to the Hirer notices related to navigational and/or marine safety infringements.

  3. DEPOSIT BOND AND CANCELLATION OF HIRE AGREEMENT

    1. The Company has the right to terminate the hire and take immediate possession of the Vessel if the Hirer fails to comply with any of the terms of the Hire Agreement, or if the Vessel is damaged. The termination of a hire under the authority of this clause shall be without prejudice to the other rights of the Company and the rights of the Hirer under the Hire Agreement or otherwise.

    2. The Hirer will be required to pay a bond at the commencement of the Hire Term.  The bond will be returned to the Hirer upon the return of the Vessel in accordance with the terms of the Hire Agreement.

  4. PRIVACY ACT

    1. The information requested from the Hirer is to enable the Company to assess the Hirer’s request to hire a Vessel.  The Hirer does not have to supply this information, but if the Hirer does not, then the Company is unable to hire the Vessel. The Hirer acknowledges that the Company will collect, hold and use the Hirer’s personal information for purposes related to the hire of the Vessel and the provision of related customer services, including direct marketing and assessing customer satisfaction with products and services provided by the Company. The Hirer further acknowledges that such personal information may be disclosed to debt collection agencies in the event that the Hirer defaults in the payment of any monies owing to the Company, or other parties involved in an accident with the Vessel while on hire to the Hirer; or any organisations responsible for the processing or handling of navigational related infringements; and the Hirer hereby authorises the disclosure of their personal information for such purposes.

  5. GOVERNING LAW AND JURISDICTION

    1. This Hire Agreement and any claim or dispute arising out of or in connection with the services provided pursuant to the Hire Agreement shall be subject to the laws of New South Wales and any such claim or dispute shall be determined by the Courts of New South Wales.

  6. LEGISLATION

    1. If the Hire Agreement is held to be subject to the laws of the Commonwealth of Australia or of any particular State or Territory in Australia then this Hire Agreement shall continue to apply and shall be void only to the extent that they are inconsistent with or repugnant to those laws and no further.  Nothing in this Hire Agreement is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 and the Australian Consumer Law, or comparable legislation in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

    2. If any other legislation is compulsorily applicable to any business undertaken, this Hire Agreement shall, as regards to such business, be read as subject to such legislation and nothing in this Hire Agreement shall be construed as a surrender by the Company of any of its rights or immunities or as an increase of any of its responsibilities or liabilities under such legislation and if any part of this Hire Agreement is held to be repugnant to such legislation to any extent such part shall as regards such business be over-ridden to that extent and no further.

  7. ENTIRE AGREEMENT

    1. The Hire Agreement constitutes the entire agreement between the Company and the Hirer and cannot be amended or altered unless agreed in writing.

    2. By signing the Hire Contract, the Hirer acknowledges they have read and understood and agree to be bound by the terms and conditions of the Hire Agreement and any exceptions and acceptance of liability and indemnity provisions and that it has familiarised itself with and understands the Information Guide Safety Management Plan.