These DOCKING TERMS, constitute and establish the mooring contract between the Customer and the Company, together and inseparably with the MOORING SHEET/MOORING CARD which defines the parties, the payment, times and size of the boat and the validity.
ARTICLE 1 - SERVICES AND RENEWAL PROCEDURES
1.1 The Company makes the structures and mooring equipment (protected water area, equipped banks and docks, water and electricity dispensing columns, port area lighting) available to the Customer for the agreed period and the Customer, besides accepting them as found to his liking, guarantees to use them exclusively for his vessel as described in the MOORING SHEET/MOORING CARD, in the manner set out in the DOCKING TERMS, as scheduled by the MOORING SHEET/MOORING CARD and the fee therein, in accordance with the Management Regulations, formerly Decree No. 16/2007 issued by the Maritime District Office of Golfo Aranci and the Safety Regulations, formerly the Directive by the Maritime District of Golfo Aranci No 15/2009 as well as according to the Company and its employees’ guidelines.
1.2 The fees for the provision of services and the method of payment are defined by the DOCKING TERMS, by the MOORING SHEET/MOORING CARD and by legislation, including tax legislation, in force at the time. Port services granted to the Customer, are inextricably related to the above-indicated vessel and connected to the Berth that the Marina will unquestionably assign to the Customer.
1.3 The Customer may not renounce, even in part, to take advantage of the Port Services, which will be issued exclusively by the Company, pursuant to Art 1567 of the Civil Code, nor may he deny payment, even partial, of the fees in any way, including by citing non-enjoyment or partial use of the Marina’s facilities or portions thereof, or of some of the Services. The fees for water and energy consumption are included in those set for the docking, except as provided by Art 12, paragraph 2 and 3 of Decree No. 16/2007.
1.4 These DOCKING TERMS shall apply for the period indicated in the MOORING SHEET/MOORING CARD and cease their effect on the date indicated therein, without need of prior cancellation. Following a request by the Customer, a new agreement with the terms prevailing at the time may be undertaken at the unilateral and unquestionable discretion of the Company. The Company does not guarantee a Berth availability following any renewal request made by the Customer. Automatic renewal is expressly excluded. The issue of a MOORING CARD / MOORING SHEET, including digital, (as a result of an ON-LINE reservation) in favour of the Customer, constitutes an express statement of acknowledgment, understanding and acceptance of the DOCKING TERMS by the Customer. On-line reservations; that is, through computerised procedures provided by the Company on Internet, where partial payment of the mooring fee required by the Company occurs, constitutes an additional express statement of acceptance of the DOCKING TERMS and fees related to the period booked on the part of the Customer. Any continued presence of the Customer’s vessel must be agreed in writing by the Customer by previously undersigning a new MOORING SHEET/MOORING CARD, or perfected through the procedures provided by the Company on the internet. In the event that, in the absence of renewal and / or extension and / or for any other reason, the Customer’s vessel protracts its presence at the Marina beyond the duration term determined in the MOORING SHEET/MOORING CARD, the Company will apply, without exception, its daily mooring rates in force at the time.
1.5 Only vessels in relation to which the Company does not claim direct credits from the Owner or the Skipper, his agents, representatives and/or ship’s agents, etc. may access their Berth pursuant to the DOCKING TERMS and in accordance with the established fees.
ARTICLE 2 WAIVERS - REFUNDS - TERMS - LATE ARRIVAL AND EARLY DEPARTURE
2.1 In case of communication by the Customer of cancellation of the temporary use of the Berth within the thirty days preceding the date of commencement of the rental period, the Company will withhold 20% of the tariff.
2.2 In case of communication by the Customer of cancellation of the temporary use of the Berth within the thirty days but prior to fifteen days from the date of commencement of the rental period, the Company will retain 35%. 2.3 In case of communication by the Customer of cancellation of the temporary use of the Berth within the fifteen days but prior to three days from the date of commencement of the rental period, the Company will retain 60%.
2.4 The additional EXEMPTION FROM PENALTIES amendment allows the Customer who optionally accepts this to remain unaffected by the penalties referred to in the previous Articles. 2.1, 2.2 and 2.3. The exemption from penalty, therefore, may not be applied to cases where cancellation occurs later than 3 days prior to the agreed berthing commencement. The clause also applies to partial periods of the mooring contract.
2.5 The additional "Weather Permitting" amendment allows the Customer who adheres to defer the port mooring period without any charges up to a maximum of five days, because of adverse weather conditions along the approach route. Once this period elapses, the clause lapses for the entire docking delay, including the first 4 days.
2.6 The EXEMPTION FROM PENALTIES clause only applies to the Customer who has adhered to this, by paying the entire mooring amount including the additional cost of such clause. In order to activate said clause, the Customer must notify his intention to waive all or part of the agreed mooring contract to the Company by fax to no 0789.33560 and/or by certified mail (email@example.com) with acknowledgment of receipt and/or reading, specifying: • Full name or company name of the contract header; • Name and size of the vessel; • Period waived; also enclosing the document certifying the cause of renunciation.
2.7 The clause in question may only be activated in one of the following cases, provided this is attested by a valid, appropriate and official certification issued by an Authority and/or by an impartial third party recognised by the Company at its sole discretion: • Injury or illness of the Owner, the Skipper (if formally embarked) and/or the Owner’s spouse and/or his/her relative or similar up to second degree kinship and/or affinity, such that the injured and/or ill person cannot leave his home; • Death of the Owner, the Skipper (if formally embarked) and/or the Owner’s spouse and/or his/her relative or similar up to second degree kinship and/or affinity; • Accident to the Vessel subject of the mooring contract which prejudices its navigability; • Shipwreck of the Vessel subject of the mooring contract; • Objective material inability for the Owner and/or the Skipper to reach the Vessel in the port of origin for sailing to the Marina, beyond their control; • Job loss and/or bankruptcy and/or arrest of the Owner (if he is a natural person). Any delay in the launch and/or delivery by the shipyard who performed any maintenance and/or work on the Vessel prior to its use in the context of which it is scheduled to berth at the Marina, does not constitute a valid reason for the purposes of the clause in question, except to the extent of 50% of each of the penalties to which it relates and only if attested.
2.8 The “WEATHER PERMITTING” clause only applies to the Customer who adhered to this, by paying the entire mooring amount including the additional cost of such clause. In order to activate said clause, the Customer must notify his intention to waive all or part of the agreed mooring contract to the Company by fax to no 0789.33560 and/or by certified mail (firstname.lastname@example.org) with acknowledgment of receipt and/or reading, specifying: • Full name or company name of the contract header; • Name and size of the vessel; • Port of origin of its voyage towards the Marina; • Planned course to reach the Marina, according to seamanship; • Estimated time of scheduled departure prior to the intervention of adverse meteorological conditions; • Delay expected. 2.9 The clause in question may only be activated in one of the following cases, provided this is attested by a valid, appropriate and official certification issued by an Authority and/or by an impartial third party and recognised by the Company at its sole discretion: • Wind on average higher than force 6 on the Beaufort scale and sea on average more than 4 (very rough), constantly for over one third of the entire route separating the Marina from the cruise home port and the simultaneous absence of significant shelters along the route. • Distance between the cruise home port and the Marina of at least 100 nautical miles.
2.4 Should the Customer notify cancellation of the temporary use of the Berth within less than three days from the date of commencement of the rental period, the Company will retain the full rate, independently from and regardless of whether the special EXEMPTION FROM PENALTIES and/or "WEATHER PERMITTING" clauses have been subscribed to.
2.5 Any refunds, in accordance with the provisions of paragraphs 2.1, 2.2, 2.3 and 2.4, will only be made in favour of the reservation holder.
2.6 Should the Customer cancel the temporary use of Berth without having paid any advance fees at the time of booking or has made a down payment on the rate, he will still have to pay the Company the difference between the advance and what is actually due within 7 days from the cancellation notification.
2.7 Cancellation communications are only considered valid if made in writing and sent by post, fax or email. The Customer must indicate his bank information in the cancellation notice in order to enable the Company to effect refunds. Failing such indication the amounts due will be available at the offices of the Marina and may be collected by the Customer or by an expressly delegated person.
2.8 Except as provided by special clauses EXEMPTION FROM PENALTIES and / or "WEATHER PERMITTING", late arrivals, early departures and / or temporary interruption of the continuity of the berth during the periods agreed upon do not give the right to any reimbursement for unused days.
ARTICLE 3 – CONTRACT TRANSFER - DEFAULT INTEREST - PRIVILEGES – SEIZURE
3.1 The DOCKING TERMS are concluded "on a personal basis". The Customer, therefore, cannot assign his rights arising therefrom or replace others in the right of use and rights arising from the same, as the contract transfer is expressly prohibited as well as the sublease or sub-contracting of the above-mentioned Berth, except as set forth in Article 13 of the Management Regulations. Should the Customer exercise the option pursuant to Article 13 of the Management Regulations, the fee that the Company will receive for implementing the mandate is set at 20%.
3.2 In the event of non-payment within the agreed deadlines, the Customer may not remove his Unit from the Marina areas and the Company may, at its own discretion, issue a draft plus expenses and interest and declare the mooring contract resolved. The Customer will be charged default interest according to law on all payments made after the contract deadlines.
3.3 Receivables of the Company under this contract are assisted by special lien in accordance with Article 552 of the Navigation Code and, therefore, pursuant to article 2769 of the Civil Code, the Company may request protective attachment of the Vessel from the Jurisdictional Authority.
ARTICLE 4 - CHANGES TO STRUCTURES, WORKS
4.1 The Company reserves the right, on justified Marina organisational, commercial and / or management grounds; i.e. for carrying out restructuring or extension work, to change the Berth location one or more times as required and consequently to move the Customer’s vessel. The Company undertakes to avoid, as far as possible, implementing this option; it being understood that the Company agrees to notify the Customer at least two days in advance (except for emergencies) of the necessity of moving the vessel and that this shift, even if temporary, will only take place in another Berth whose class and size are at least equal to the one contractually assigned.
4.2 In cases of works in the Marina for reasons beyond the Company’s control; i.e. in accordance with any instructions given by the competent Authorities, no refunds or compensation for any loss of the temporary right of use of the Berth and Port Services may be claimed by the Customer.
ARTICLE 5 - MANAGEMENT REGULATIONS. REQUIREMENTS AND RESTRICTIONS
5.1 The rules on restrictions and requirements are contained in the above-mentioned Management and Security Regulations which constitute an integral, essential and inseparable part of this Agreement.
5.2 The Customer undertakes to respect and to enforce the aforesaid Regulations, which he claims to have read, understood and accepted as of now, as he accepts any amendments thereto deemed necessary or appropriate by the Company, including as a result of the adoption of new rules or provisions and in any case subject to approval by the competent Authority.
5.3 The Regulations are public and posted at the offices of the Marina as well as available on the Company's website. The Customer may request a copy at any time by visiting the Marina offices or by sending an e-mail request to the following address: email@example.com.
5.4 Failure to comply with the rules contained in the Regulations, especially if recurrent, constitutes a serious breach and may result in the termination of the mooring contract without any liability for damages and without prejudice to compensation for any damages caused by the Customer because of his behaviour.
ARTICLE 6 - TAXES
6.1 Any tax burden, taxes or charges, however inherent, consequent or connected to the mooring contract are the sole responsibility of the Customer, even if applied after the conclusion of the contract itself or as a result of a different interpretation of the tax laws. Any contingent assets and repayments in respect of tax burdens, duties or taxes in any case inherent, consequent or connected to the mooring contract, paid by the Customer, which are paid to the Company in accordance with a different interpretation of the tax laws, will be returned to the Customer.
ARTICLE 7 – VESSEL AND DATA CHANGING
7.1 The Customer must notify the Company, at least ten days in advance and by registered mail, the intention to replace the vessel subject of the contract with another Unit. Should the latter have different dimensions from those given for occupying the Berth indicated in the MOORING SHEET/MOORING CARD, the Company may, at the request of the Customer and based on existing availability, assign to the Customer a different Berth adapted to the new unit, after novation of the mooring contract according to the new charges set in compliance with prices in force at the time of reassignment. In the absence of the contract novation, the Customer is expressly forbidden to moor a vessel in the Marina with different dimensional features than those relating to the Berth indicated in the MOORING SHEET/MOORING CARD.
7.2 The Customer shall also notify the Company in writing, within 10 days from the variation, of any change related to his personal data or to the characteristics of the Vessel which were previously declared and contained in the MOORING SHEET/MOORING CARD. In the event of default the Company reserves the right to terminate the mooring contract, without any compensation.
ARTICLE 8 – LIABILITY - INDEMNITY - RESOLUTION
8.1 The Customer is the sole and exclusive entity responsible for the legal obligations relating to his vessel as well as for damages caused to third parties and to the port facilities by his Unit or by persons staying in any capacity. The Company assumes no "custody" obligation of the vessels moored or otherwise present within the Marina and, consequently may not be held liable for any damage to people, vessels or to things, arising from or related to the presence, in the port area, of the above-described Vessel.
8.2 The Company shall not be liable for any delay or non-performance of the obligations according to the DOCKING TERMS/ MOORING CARD in cases where such delay or non-performance is caused by events beyond its reasonable control which prevent such fulfilment, including, but not limited to, the following examples: storm surges, tornadoes, floods, fire, lightning, explosion, war, strikes, requests by government, civil or military agencies, force majeure or unforeseeable circumstances, actions or omissions by any governmental authority.
8.3 Except in the case of gross negligence, the Company shall have no responsibility for the custody of the things owned by the Customer brought into the Marina, neither for accidents, theft or damage to persons or property which may be suffered by the Customer in the Marina itself. In relation to the above, every Customer is required to implement the necessary precautions and to take out adequate insurance policies. By accepting the DOCKING TERMS, the Customer declares that the vessel described above is covered by adequate and appropriate civil responsibility insurance for damage to third parties and is committed to maintaining such insurance coverage for the duration of this contract.
8.4 Prior to leaving the Marina, the Customer must ensure that the mooring is in perfect condition and, in particular, that the lines are in perfect condition and properly fixed according to the rules of seamanship. In an emergency, Company employees may replace mooring lines or fenders that are worn, deficient or not efficient, and the costs will be borne by the Customer. In any case, the Customer is responsible for the way in which his unit was moored and will answer for any damages caused to the Company and to third parties due to fault, incompetence and/or negligence.
8.5 With reference to any works, however slight, that are carried out to the above-described Vessel by contractors hired by the Customer, the latter is responsible for verifying and complying with current work and safety legislation on the part of his representatives, indemnifying and holding the Company harmless from any responsibility for the work by said contractors.
8.6 In the case of proven untrue statements regarding the size of the described Vessel the Company may, expressly recognised by the Customer, lawfully rescind the mooring contract, without prejudice to any compensation for damages.
ARTICLE 9 - PRIOR AGREEMENTS
9.1 The MOORING SHEET / MOORING CARD issued to the Customer cancels and replaces any previous agreement between the Company and the Customer - verbal or written - concerning the transfer of the direct or indirect right of use of a Berth, of any size and in any case located in the Marina, to the Customer.
ARTICLE 10 - INFORMATION PURSUANT TO ART 13 L. DECREE 196/03
10.1 The data controller is Marina di Portisco SpA. The Company processes the personal, tax and economic data of the Customer, in order to implement contractual relationships. The data will be processed for the entire duration of the contract and thereafter, for the fulfilment of legal obligations and for administrative purposes. The treatment is carried out by the staff in charge, through the use of electronic and manual procedures which ensure its security and confidentiality. The conferment of data is required in order to fulfil the obligations required by Law. The data will not be disseminated and may be disclosed to third parties only for the performance of duties provided by Law. Pursuant to Article 7 of Legislative Decree no 196/2003 paragraphs 184.108.40.206., the Customer may exercise the right to access his personal data.
10.2 Processing of data for commercial purposes: the Company notifies that it may use the Customer’s personal data directly and/or through Italian and foreign companies and/or as part of partnerships. The purpose is to communicate commercial information concerning conventions and services related to recreational boating and nautical tourism to the Customer. Agreement for this type of treatment is understood as expressed freely and unconditionally by the Customer when undersigning the DOCKING TERMS.
ARTICLE 11 - EXPENSES
11.1 All postage necessary for communications regarding the relationship between the Customer and the Company will be charged to the Customer. The mooring contract falls within the field of application of VAT, with the ordinary rate applicable in force from time to time.
ARTICLE 12 - REFERENCE
12.1 The Parties expressly agree to defer anything not provided in this agreement to the rules contained in the Civil Code or inferable from other general framework and/or special laws in force. Article 13 - JURISDICTION 13.1 Any dispute concerning the interpretation and / or execution of this Agreement falls under the competence of the Court of Tempio (OT).