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TERMS OF USE

CUSTOMER TERMS OF SERVICE

PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION THAT AFFECTS YOUR RIGHTS, REMEDIES

 

OPERATIVE PROVISIONS

  • Definitions and interpretation

CUSTOMER means (you or your), a user of the services who books charters through the service.

CHARTER OPERATOR and OPERATOR means a registered charter operator whom is registered to access the service and list vessels and whom directly manages, maintains, and crews a vessel for charter.

SERVICES means the services available through the EXQUISITE BOATS website namely booking and provision of boat charter services.

  • Introduction
    • TENACITY HOLDINGS PTY LTD trading as EXQUISITE BOATS and its subsidiaries (collectively, “EXQUISITE BOATS”, “we”, or “us”), provide an online boat charter platform that connects vessel owners / charter operators with customers seeking to book those vessels. EXQUISITE BOATS is accessible online including at EXQUISITE BOATS.comand as an application for mobile devices. The EXQUISITE BOATS websites, blog, mobile applications, and associated services are collectively referred to as “the Services”. By accessing or using the Services, including by communicating with us or other EXQUISITE BOATS users, you agree to comply with, and be legally bound by, the provisions of these Terms of Service (these “Terms”), whether or not you become a registered user of the Services. These Terms govern your access to and use of the Services and constitute a binding legal agreement between you and EXQUISITE BOATS.
  • Verification
    • EXQUISITE BOATS does not endorse any vessel, charter operator, or charter operator’s background, or commit to undertake any specific screening process.
    • EXQUISITE BOATS may permit or refuse your request to book a vessel in its sole and absolute discretion. EXQUISITE BOATS may, but does not commit to, undertake efforts to ensure the safety of vessels shared through the Services. We do not make any representations about, confirm, or endorse the safety, seaworthiness, or legal status of any vessels beyond our policies that require operators to ensure their vessels are in safe and operable condition, legally registered to be operated on public waterways, have a clean title (e.g., non-salvaged/non-branded/non-washed/non-written off), not subject to any applicable safety recalls, and otherwise satisfy our eligibility requirements.
  • Consumer Report Authorisation. 
    • When you attempt to book a vessel, or at any time after where EXQUISITE BOATS reasonably believes there may be an increased level of risk associated with your EXQUISITE BOATS Account, you hereby provide EXQUISITE BOATS with written instructions and authorize EXQUISITE BOATS, in accordance with applicable consumer reporting laws, or any similar laws to obtain your personal and/or credit report, and/or conduct a background check, including a criminal background check where permissible under applicable law.
  • Fees, taxes
    • Fees
      • The fees we charge for using the Services and other cost structures will be itemised at checkout for customers. You can verify the amount for your booking at checkout before you submit your booking request. You authorize EXQUISITE BOATS, or third-party service providers acting on behalf of EXQUISITE BOATS, to store your payment credential for future use in the event you owe EXQUISITE BOATS any money. You authorise EXQUISITE BOATS to use stored payment credentials for balances, including for Customer fees (e.g., late fees, security deposits, processing fees and claims costs, and related administrative fees). In some cases, our payment processors have arrangements with card networks to automatically update stored payment credentials whenever you receive a new card (e.g., replacing an expired card or one that was reported lost or stolen) and we will rely on such updates to stored payment credentials for balances.

 

  • Collection of fees
    • EXQUISITE BOATS and its service providers will employ all legal methods available to collect amounts due, including the engagement of collection agencies or legal counsel.
    • EXQUISITE BOATS, or the collection agencies we retain, may also report information about your EXQUISITE BOATS Account to credit bureaus. As a result, late payments, missed payments, or other defaults on your EXQUISITE BOATS Account may be reflected in your credit report. In addition to the amount due, delinquent accounts or chargebacks will be charged with fees and/or charges that are incidental to the collection of delinquent accounts or chargebacks including, but not limited to, collection fees, convenience fees, and/or other third party charges. If you wish to dispute the information EXQUISITE BOATS reported to a credit bureau (i.e., Equifax), please contact XXXXXXX If you wish to dispute the information a collection agency reported to a credit bureau regarding your EXQUISITE BOATS Account, you must contact the collection agency directly.
  • Goods and Services Tax (GST)
    • EXQUISITE BOATS will collect and remit GST from or on behalf of customers or operators, based on existing and future tax regulations. The amount of taxes, if any, collected and remitted by EXQUISITE BOATS will be visible to, and separately stated, to both guests and operators on their respective booking related documents and invoices. Where EXQUISITE BOATS is facilitating the collection and remittance of taxes, operators are not permitted to collect the same taxes on the Services in relation to their vessel in that jurisdiction.
  • Your commitments
    • You agree that you will always use your EXQUISITE BOATS Account and the Services in compliance with these Terms, applicable law, and any other policies and standards provided to you by EXQUISITE BOATS.
  • Account Activity
    • You are, and will be solely responsible for, all of the activity that occurs through your EXQUISITE BOATS Account. Keep your EXQUISITE BOATS Account information, including your password, secure. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your EXQUISITE BOATS Account, whether or not you have authorized such activities or actions. You will immediately notify EXQUISITE BOATS of any actual or suspected unauthorized use of your EXQUISITE BOATS Account. We are not responsible for your failure to comply with this clause, or for any delay in shutting down or protecting your EXQUISITE BOATS Account unless you have reported unauthorized access to us.

 

  • EXQUISITE BOATS Content and User Content License
    • Subject to your compliance with the provisions of these Terms, EXQUISITE BOATS grants you a limited, revocable, non-exclusive, non-transferable license, to access and view any EXQUISITE BOATS and/or user content to which you are permitted access, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by EXQUISITE BOATS or its licensors, except for the licenses and rights expressly granted in these Terms.

 

  • Prohibited activities

In connection with your use of or access to the Services, you agree that you will not, nor advocate, encourage, request, or assist any third party to:

  • Violate any law, including:
    • Post false, inaccurate, misleading or defamatory content.
  • Provide or submit any false or misleading information, including:
    • False name, date of birth, marine and or driver’s license details, payment method, insurance, or other personal information;
    • In relation to a claim (for example about damage to a vehicle)
    • By registering for a EXQUISITE BOATS Account on behalf of an individual other than yourself;
    • Impersonating any person or entity, or falsifying or otherwise misrepresenting yourself or your affiliation with any person or entity.
  • Fail to honour your commitments, including:
    • Fail to pay fees, penalties, or other amounts owed to EXQUISITE BOATS or another user;
    • Use the Services to find a charter operator, and then complete a transaction partially or wholly independent of the Services, for any reason including but not limited to circumventing the obligation to pay any fees related to the provision of the Services by EXQUISITE BOATS;
    • Transfer your EXQUISITE BOATS Account and/or user ID to another party without our consent.
  • Use the Services for your own unrelated purposes, including to:
    • Contact another EXQUISITE BOATS charter operator for any purpose other than in relation to a booking or the use of the Services by such customer;
    • Commercialize any content found on the Services or software associated with the Services, including reviews;
    • Harvest or otherwise collect information about customers or charter operators without their and our consent;
    • Recruit or otherwise solicit any customer to join third-party services or websites that are competitive to EXQUISITE BOATS, without our prior written approval.
  • Communications with you
    • You agree that EXQUISITE BOATS may contact you by electronic means (e.g., electronic mail; notifications via EXQUISITE BOATS messaging; app notification) in lieu of any requirement for mailed notices. To contact you more efficiently, you agree that we may at times also contact you using autodialled or pre-recorded message calls or text messages at your phone number(s). We may place such calls or texts primarily to confirm your signup, provide notices regarding your EXQUISITE BOATS Account or EXQUISITE BOATS Account activity, investigate or prevent fraud, collect a debt owed to us, or communicate urgent messages. We may share your phone number(s) with service providers with whom we contract to assist us in pursuing these interests. We will not share your phone number(s) with third parties for their own purposes without your consent. Standard telephone minute and text and data charges may apply. Where EXQUISITE BOATS is required to obtain your consent for such communications, you may choose to revoke your consent.
  • Insurance and protection plans
    • EXQUISITE BOATS is not an insurance company and does not insure customers or Charter Operators.
  • Condition of the vessel and optional Extras
    • Each operator is responsible for complying with all legal requirements (including ensuring the vessel is registered and insured) and maintaining their vessel(s) in safe and seaworthy condition.
    • You acknowledge that EXQUISITE BOATS is not responsible and shall not be liable for the safety, seaworthiness, or legal status (e.g., whether the vessel is legally registered or the subject of a stolen vessel report) of any vessels shared via the Services beyond our policies that require operators to ensure their vessels are in safe and operable condition, legally registered to be on public waterways, not subject to a missing or stolen vessel report, have a clean title (e.g., non-salvaged/non-branded/non-washed/non-written off), not subject to any applicable safety recalls, and otherwise satisfy our eligibility requirements.
    • You understand that third parties own the vessels and Extras offered through the Services. Each operator is responsible for complying with all legal requirements (including ensuring the vessel is registered and insured) and maintaining their vessel(s) in safe and seaworthy condition.
  • Disclaimers
    • EXQUISITE BOATS PROVIDES SERVICES THAT ENABLE THE CHARTERING OF VESSELS AND OPTIONAL EXTRAS BETWEEN OPERATORS AND CUSTOMERS. EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS, EXQUISITE BOATS DOES NOT ITSELF PROVIDE CHARTERED VESSELS AND IS NOT RESPONSIBLE FOR ANY OF THE ACTS OR OMISSIONS OF ANY OF THE USERS OF ITS SERVICES, THE MANUFACTURER OF THE VESSEL OR ANY OPTIONAL EXTRAS, OR ANY THIRD-PARTY PROVIDER OF SERVICES. THE SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WITHOUT LIMITING THE FOREGOING, EXQUISITE BOATS EXPLICITLY DISCLAIMS ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. 
    • EXQUISITE BOATS makes no warranty that the Services, including, but not limited to, the listing and/or any vessel or optional Extra, will meet your requirements or be available on an uninterrupted, secure, or error-free basis.
    • EXQUISITE BOATS makes no warranty regarding the quality of any listings, vessels, operators, customers, Extras, the Services, or any content or the accuracy, timeliness, truthfulness, completeness, or reliability of any content obtained through the Services.

 

  • Limitation of liability and waiver
    • YOU WAIVE AND DISCHARGE ANY AND ALL RIGHTS YOU HAVE TO SUE OR MAKE CLAIMS AGAINST EXQUISITE BOATS AND ANY OF ITS SUBSIDIARIES, DIRECTORS, OFFICERS, AGENTS (INCLUDING THIRD-PARTY ADMINISTRATORS OR EMPLOYEES (TOGETHER, THE “EXQUISITE BOATS PARTIES”) AND ANY EXQUISITE BOATS USER FOR ANY DAMAGES OR LOSSES, WHETHER DUE TO NEGLIGENCE OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE FOLLOWING: (1) VESSEL AVAILABILITY (E.G., A VESSEL NOT BEING AVAILABLE WHEN IT WAS SUPPOSED TO BE), (2) PROBLEMS WITH A VESSEL (E.G., ANY MALFUNCTION OF OR DEFICIENCY WITH A VESSEL), (3) VESSEL WARRANTY ISSUES (E.G., ANY BREACH OF WARRANTY OR OTHER OBLIGATION BY ANY MANUFACTURER OR OTHER THIRD PARTY ASSOCIATED WITH THE VESSEL), (4) THE LEGAL OR LICENSE STATUS OF A VESSEL OR ITS OPERATOR, (5) THIRD PARTY ASSESSMENTS OF A VESSEL’S VALUE, OR (6) ANY ACTION OR INACTION OF AN OPERATOR OR CUSTOMER.
    • YOU AGREE THAT NEITHER EXQUISITE BOATS NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, DATA, OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR CONNECTION WITH THE FOLLOWING: (1) THE AGREEMENT, (2) THE SERVICES (INCLUDING BOOKING OF ANY VESSEL OR OPTIONAL EXTRA VIA THE SERVICES), OR (3) INABILITY TO USE THE SERVICES.
    • THE ABOVE LIMITATIONS OF LIABILITY AND WAIVER PROVISIONS ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EXQUISITE BOATS AND YOU. THEY SHALL APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND ANY ASPECTS OF THEM THAT ARE DEEMED VOID OR UNENFORCEABLE SHALL BE SEVERED WHILE LEAVING THE REMAINDER IN EFFECT.
  • Indemnification
    • You agree to release, defend, indemnify, and hold EXQUISITE BOATS and its subsidiaries, officers, directors, employees, and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with: (1) your access to or use of the Services, (2) your violation of these Terms, (3) your user content, (4) your interaction with any other user of the Services, or (5) your booking of a vessel. Such indemnification includes but is not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential, or otherwise) arising in connection with or as a result of a booking or use of a vessel or optional Extra. This indemnification provision is a fundamental element of the basis of the bargain between EXQUISITE BOATS and you. It shall apply to the extent permitted by applicable law, and any aspects of it that are deemed unenforceable shall be severed while leaving the remainder in effect.

 

  • Governing law
    • The parties agree that the substantive laws of the state of Victoria, Australia apply to these Terms and the Agreement without regard to conflict of law provisions.
  • Severability and non-waiver
    • In the event any provision of these Terms is held to be void, voidable, or unenforceable, the remaining provisions shall remain in full force and effect. The failure of any Party to enforce any provision of these Terms shall not be construed to be a waiver of such provision, or any other provision, nor in any way to affect the validity of these Terms or any part of these Terms, or any right of any Party to enforce that provision or each and every other provision at any time. No waiver of any breach of these Terms shall constitute or be deemed a waiver of any other breach.