5. Pre and Post Vessel Inspections. CHARTERER shall perform a pre-charter inspection of the Vessel upon delivery of the Vessel to CHARTERER, to ensure that the Vessel is suitable for CHARTERER’s intended use and to familiarize CHARTERER and CHARTERER’s crew, if any, with the Vessel, its equipment and safety procedures, and to note any pre-existing damages or conditions of the Vessel. The Vessel shall also be inspected upon its return and any damage or other conditions of the Vessel, not noted on the pre-charter inspection, shall be for CHARTERER’S account.
6. Running Expenses/Maintenance/Charges of Vessel. CHARTERER shall maintain the Vessel in good order and condition, reasonable wear and tear excepted. CHARTERER shall be responsible for any repairs to Vessel to the extent the need for such repairs arises from the use, negligence, or willful misconduct of CHARTERER, its officers, agents, employees, invitees or guests. All running expenses incurred during the Charter Period, including, but not limited to, dockage, port charges, pilotage fees, if any, consumable goods, food, water, fuel, fees and taxes as applicable, provisions and supplies for CHARTERER’s use and enjoyment, and any other expenses necessary to maintain the Vessel and its occupants in good order during the Charter Period, are provide by and paid for by CHARTERER.
7. Navigational Limits. In accordance with the restrictions set forth in OWNER’s policy of insurance, CHARTERER expressly agrees that the operation of the Vessel will be limited to Coastal Lake Michigan. Violation of these limits shall be considered a breach of this Agreement and CHARTERER shall be liable for any and all damages resulting thereby, including but not limited to, damages, costs and expenses arising as the result of a cancelation or invalidation of the Vessel insurance. CHARTERER agrees that all navigational limits are subject to weather and that OWNER does not guarantee destination.
8. Insurance. OWNER warrants that the Vessel is insured against fire, marine and collision risks, hazards to the voyage, including all engine, hull and vessel equipment, for any and all casualty and loss or damage that may occur to or be suffered by the Vessel for the Charter Period, subject to any and all deductibles, limitations, restriction and exclusions set forth in the applicable policy of insurance. The policies of insurance are to be held by OWNER. The interest of CHARTERER may not be covered under the liability portion of the Vessel’s insurance policy. CHARTERER should determine whether any such insurance coverage and applicable deductibles are adequate and appropriate for CHARTERER’s purposes and, if necessary, arrange for additional insurance provided by CHARTERER. CHARTERER agrees and warrants that neither he/she, his/her passengers, guests, occupants, and invitees, or the master/crew engaged by CHARTERER will act in any manner contrary to the terms of any policy of insurance applicable to the Vessel and/or the voyage, so as to invalidate coverage or render the policy canceled or void.
9. Damage. CHARTERER agrees to pay out of pocket for all uninsured loss or damage, including but not limited to, as a result of the invalidation or cancelation of insurance due to acts of CHARTERER or CHARTERER’s passengers, guests and invitees, master or crew, and/or due to excessive cleaning, or associated costs arising from the Charter, and CHARTERER also agrees to pay OWNER for any loss, damage, theft, disappearance, collision or other occurrence to the Vessel during the Charter Period. The CHARTERER agrees to immediately report any accident, loss or damage to OWNER and further agrees to cooperate and provide written or oral statements to OWNER or its designated representative.
10. Use of Vessel. CHARTERER agrees that the Vessel shall be used exclusively as a recreational vessel for the sole and proper use of him/herself, family, guests and invitees during the term of the Charter, and agrees not to transport merchandise for hire or carry passengers for hire, or engage in any trade, or in any way violate any laws of the United States or of any other government within the jurisdiction of which the Vessel may be at any time during the Charter. CHARTERER acknowledges and agrees that the maximum number of persons allowed aboard the Vessel, while underway or moored, shall be the lesser of the Vessel’s maximum safe weight limit/capacity, or twelve persons, excluding CHARTERER and Master/crew hired and paid by CHARTERER. CHARTERER is prohibited from charging his/her passengers a fee or accepting other consideration as a condition of being a guest aboard the Vessel. In accordance with the restrictions set forth in OWNER’s policy of insurance, use of the Vessel is restricted to the period between sunrise and sunset. Use of the Vessel is strictly prohibited between sunset and sunrise. Swimming at any time during the charter is strictly prohibited. Violation of these prohibitions/restrictions shall be considered a breach of this Agreement and CHARTERER shall be liable for any and all damages resulting thereby, including but not limited to, damages, costs and expenses arising as the result of a cancelation or invalidation of the Vessel’s insurance. In addition, CHARTERER shall not permit any scuba diving, skin diving, helmet diving, snorkeling, waterskiing, aquaplaning, para-sailing or any similar activity from the Vessel or during the Charter Period.
11. Compliance with Laws. CHARTERER shall ensure compliance with all local, state and federal laws and U.S. Coast Guard regulations during the Charter Period as well as the laws and regulations of any jurisdiction into whose waters the Vessel shall enter during the course of this Charter Agreement. If CHARTERER or any of CHARTERER’s guests, passengers, occupants, or invitees shall commit any offense contrary to the laws and regulations of any jurisdiction which results in the Vessel being detained, arrested, seized or fined, CHARTERER shall indemnify OWNER against any and all loss, damage and expense incurred by the Vessel and/or OWNER. CHARTERER shall be liable for any and all fines, penalties, damages and forfeitures as a result of any such offense or any negligence or intentional acts of CHARTERER or any of CHARTERER’s guests, passengers or invitees, and CHARTERER shall indemnify, hold harmless and defend OWNER for the same, including for attorney’s fees and costs.
12. Alcohol, Illegal Drugs, Marijuana. CHARTERER warrants and agrees not to operate the Vessel, or allow the Vessel to be operated by any person or operator that is, under the influence of alcohol, illegal drugs or marijuana. CHARTERER acknowledges and represents that he/she has been informed of, or is other aware of, the U.S. Coast Guard’s policy of “zero tolerance” of drugs aboard vessels and warrants to OWNER that there will be no illegal drugs, marijuana, or other contraband brought aboard the Vessel at any time during the Charter Period or any extension thereof. CHARTERER agrees to fully indemnify, defend and hold OWNER harmless for any losses suffered by OWNER and/or the Vessel in the event that CHARTERER breaches this covenant, including, but not limited to, for any and all losses, fines, penalties, and damages, including attorney’s fees and costs, incurred by OWNER and/or the Vessel, in defending any action bought against OWNER and/or the Vessel by any governmental agency or otherwise, whether local, state, federal, or foreign, as a result of the violation of any regulations, laws, or contraband laws or policies.
13. Liens. CHARTERER and CHARTERER’s agents and employees, shall have no rights, power, or authority to create, incur, or permit to be imposed upon the Vessel, including its appurtenances, any liens or encumbrances of any nature. CHARTERER agrees to indemnify, defend and hold harmless OWNER and the Vessel and its appurtenances for any charges or losses in connection therewith, including reasonable attorneys’ fees and costs, incurred by OWNER and/or the Vessel and its appurtenances with regard to any such liens or encumbrances, including but not limited to any actions to secure the satisfaction and/or release of same.
14. Sub-Charter or Assignment. CHARTERER shall not sub-charter or assign this Charter without obtaining the prior written consent of OWNER.
15. Re-delivery of the Vessel. CHARTERER shall, at the expiration of the Charter Period or any agreed to extensions thereof, re-deliver the Vessel, her equipment and furnishings, free and clear of any indebtedness or encumbrances incurred for CHARTERER’s account, to OWNER, at the time and place specified above, in as good condition as when delivery was taken, ordinary wear and tear excepted. If re-delivery of the Vessel is delayed by reason of force majeure, re-delivery shall be made as soon as possible thereafter and this Agreement shall remain in effect with no penalty against CHARTERER. If re-delivery of the Vessel is delayed for reasons attributable solely to the CHARTERER, then for each hour, or portion thereof, of delay in re-delivery of the Vessel, CHARTERER shall pay to OWNER a sum equal to the Charter Hire divided by the number of hours comprised in the Charter Period, subject to OWNER’s right to recover further and additional loss or damages, if any, flowing from CHARTERER’s delay. If CHARTERER elects to re-deliver the Vessel prior to the expiration of the Charter Period for reasons not attributable to OWNER, CHARTERER shall not be entitled to the return of any Charter Hire.
16. Failure to Deliver the Vessel. OWNER shall not be responsible for failure to deliver the Vessel at commencement of the Charter Period if such failure is caused by reasons beyond the control of OWNER or by reason of the Vessel having been lost or disabled. Should such delivery not he made within one day after the specified date, this Agreement may be canceled by OWNER or CHARTERER and any deposits or amounts paid on Charter Hire shall be returned to CHARTERER, and OWNER shall have no further duty or liability under this Agreement, and shall not be liable to CHARTERER for any costs or expenses incurred by CHARTERER, whether such loss be either direct or indirect or result in any special or consequential damages.
17. Cancellation by Charterer. In the event CHARTERER cancels this Agreement at least fourteen (14) days prior to the commencement or the Charter Period, OWNER shall refund 100% of the Charter Hire paid by CHARTERER. In the event CHARTERER cancels this Agreement less than fourteen (14) days and at least three (3) hours prior to the commencement or the Charter Period, CHARTERER shall receive a credit equal to 100% of any Charter Hire paid, to be used toward a future Charter. In the event CHARTERER cancels this Agreement less than three (3) hours prior to the commencement of the Charter Period, CHARTERER shall not be entitled to a refund or credit of any part of the Charter Hire paid and the same shall be retained by OWNER and neither party shall have any further obligation or liability under this Agreement. Notwithstanding the above, the Charter may, in the sole discretion of OWNER, be rescheduled due to weather, without penalty to CHARTERER.
18. Cancellation by the OWNER. If prior to the start date of the Charter Period, this Agreement is cancelled in writing (including by e-mail) by OWNER, all monies paid by CHARTERER shall be refunded in full to CHARTERER, and OWNER shall have no further liability whatsoever to CHARTERER.
19. Choice of Law/Forum/Jurisdiction. This Agreement shall be construed under and governed by Federal Admiralty Law. To the extent Federal Admiralty Law does not apply, the laws of the State of Illinois, excepting for the choice of law rules of said state, shall apply. If any provision shall, for any reason, be found to be invalid, illegal, or unenforceable in any respect, such shall not affect any other provision of this Agreement. Any actions or controversies arising out of or relating to this Agreement, including but not limited to any breach hereof, shall be brought in the federal court of the Northern District of Illinois, Eastern Division, and CHARTERER expressly agrees to submit to the personal jurisdiction of said courts.
20. Entire Agreement/Binding Effect. This Agreement constitutes the entire
agreement as between OWNER and CHARTERER and supersedes any prior written or oral agreements or understandings between them. This Agreement may not be modified or amended other than by a written document signed by both OWNER and CHARTERER. All of the terms and provisions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by or against the parties and their representatives, heirs, estates and permitted assigns, whether specifically so expressed or not.
21. Signature. Digitally signed copies of this Agreement and/or electronically transmitted signatures on the Agreement shall have the same force and effect of original signatures and shall be binding.
22. INDEMNIFICATION. CHARTERER shall indemnify, defend and hold harmless OWNER and its officers, agents, representatives, heirs, and employees from and against any and all claims, causes of action, damages, expenses or liabilities arising from or relating to the performance of this Agreement and/or CHARTERER’s use of the Vessel and/or its equipment, including without limitation, against and from any and all liability to third parties for loss or damage attributable to acts or omissions of CHARTERER or his/her passengers, guests, occupants, and invitees, or the master/crew engaged by CHARTERER, and/or as a result of acts or omissions of CHARTERER or his/her passengers, guests, occupants, and invitees, or the master/crew engaged by CHARTERER which result in the cancelation or invalidation of the Vessel’s insurance, and/or for all claims, causes of action, damages, expenses or liabilities for loss or damage to any property, or from death or injury to any person or persons, including, but not limited to, CHARTERER’S captain, crew, invitees, passengers, occupants, guests, and third parties. CHARTERER shall also indemnify, defend and hold harmless OWNER and its officers, agents, heirs, representatives and employees from and against any and all claims, damages, expenses, fines, penalties, or liabilities assessed or charged by the U.S. Coast Guard, Illinois Department of Natural Resources, Conservation Police, or any other governing or governmental agency, relating or resulting from, or for, CHARTERER’s improper or negligent operation or use of the Vessel, including as contrary to a bareboat charter, whether the same is only alleged or proven to be true. CHARTERER’s duty to defend, indemnify, and hold harmless shall include the duty to pay all attorneys’ fees and costs incurred by OWNER in the defense of any such claims, or related to the defense and indemnification of OWNER and/or the Vessel. In addition thereto, CHARTERER shall be liable for all attorneys’ fees and costs incurred by OWNER in enforcing the terms of this indemnification provision.
23. WAIVER OF LIABILITY. CHARTERER agrees that he/she and all of his/her guests, passengers, occupants, and/or invitees will sign a Release, Waiver of Liability, and Indemnification Agreement prior to boarding the Vessel. Said Agreement must be returned to OWNER or OWNER’s representative prior to boarding the Vessel