Terms and Conditions for The Yacht Club
1 Your relationship with The Yacht Club
1.1 Your use of products, services and web sites (referred to collectively as the “Services” in this document and excluding any services provided to you by The Yacht Club or any affiliates/partners under a separate written agreement) is subject to the terms of a legal agreement between you and TYC. “TYC” means TYC Charters Sdn Bhd, with company registration number 1395373-H, whose registered place of business is at 15-02, Jalan Setia Tropika 1/8, Taman Setia Tropika, 81200 Johor Bahru, Johor, Malaysia. This document explains how the agreement is made up, and sets out some of the terms of that agreement.
1.2 Unless otherwise agreed in writing with TYC, your agreement with TYC will always include, at a minimum, the terms and conditions set out in this document. These are referred to below as the “General Terms”.
1.3 Your agreement with TYC will also include the terms of any Legal Notices applicable to the Services, in addition to the General Terms. All of these are referred to below as the “Additional Terms”. Where Additional Terms apply to a Service, these will be accessible for you to read either within, or through your use of, that Service.
1.4 The General Terms, together with the Additional Terms, form a legally binding agreement between you and TYC in relation to your use of the Services. It is important that you take the time to read them carefully. Collectively, this legal agreement is referred to below as the “Terms”.
1.5 If there is any contradiction between what the Additional Terms say and what the General Terms say, then the Additional Terms shall take precedence in relation to that Service.
2 Accepting the Terms
2.1 In order to use the Services, you must first agree to the Terms. You may not use the Services if you do not accept the Terms.
2.2 You can accept the Terms by:
(A) clicking to accept or agree to the Terms, where this option is made available to you in the user interface for any Service; or
(B) by making payment; or
(C) by actually using the Services. In this case, you understand and agree that TYC will treat your use of the Services as acceptance of the Terms from that point onwards.
3 Language of the Terms
3.1 Where TYC has provided you with a translation of the English language version of the Terms, then you agree that the translation is provided for your convenience only and that the English language versions of the Terms will govern your relationship with.
3.2 If there is any contradiction between what the English language version of the Terms says and what a translation says, then the English language version shall take precedence.
4 Provision of the Services by TYC
4.1 TYC has subsidiaries and affiliated entities around the world (“Subsidiaries and Affiliates”), including but not limited to The Yacht Club and Daker Private Limited. Services may be provided by the company itself directly, or Subsidiaries and Affiliates. Sometimes, these companies will be providing the Services to you on behalf of TYC itself. You acknowledge and agree that Subsidiaries and Affiliates will be entitled to provide the Services to you.
4.2 TYC may be contacted via various channels, and personal information such as email and phone number may be required in order to help us serve you better. By contacting TYC via any channels and providing such information, you shall be deemed to consent to TYC and/or our sister companies collecting, using, disclosing and/or processing your personal data for the purposes of marketing or client communications. You may opt-out by informing us via the same channel.
5 Agreement on the provision of the Services
5.1 Core services provided by The Yacht Club includes but is not limited to yacht charter services.
5.2 Embarkment and disembarkment point is usually at the specific berthing location of the yacht, and may be explicitly stated in the Additional Terms or Charter Agreement where applicable. Special boarding arrangements may be made upon request, subject to additional charges where applicable.
5.3 All prices quoted are in Malaysia currency, unless otherwise specified. Yacht charter rates include the exclusive use of the vessel, boat captain, crew and fuel and utilities for the agreed duration, unless otherwise specified. Fuel and utilities are usually separately charged for extended charters, subject to Additional Terms.
5.4 Yacht charter rates are exclusive of food and beverages. Recommended catering must be prearranged at least 3 days before the charter date. This is subjected to availability and will vary for different yacht. Third-party catering fee (self-catering or bring your own food) and corkage fee (bring your own drinks) may apply depending on the yacht chartered.
5.5 Booking policy: Bookings and reservations are taken on a first-come, first-serve basis, subject to the availability of the specified yacht.
5.6 Payment policy: Full payment is required for the reservation of the yacht charter. Where possible, payment must be made in full at least 1 month prior to the yacht charter date. Booking shall only be confirmed upon receipt of full payment or the specified deposit where credit term is extended. Credit term may be negotiated on a case-by-case basis.
5.7 Cancellation policy: In any event of cancellation, our cancellation policy applies
(A) Cancellations made less than 14 days prior to the yacht charter date are subjected to 100% of the charter fee, with no refund or rescheduling allowed.
(B) For cancellations made less than 1 month prior to the yacht charter date, full payment of the charter fee will be charged, with a refund of up to 50% allowed at TYC’s sole discretion.
(C) For cancellations made more than 1 month in advance, TYC may, at our discretion, allow a refund of up to 100% of the full charter fee.
(D) All refunds may be made in the form of a cash refund or credit refund.
(E) Cancellations made within office hours count towards the effective cancellation period stated above. Cancellations made after office hours will be counted beginning from the next working day.
(F) Any refund, if applicable, shall only apply to the charter fee component. Charges for food catering or other services will not be refunded should charter be cancelled for any reason.
(G) TYC will always negotiate with our vendors in the best interests of our clients. Refund decision by vendors may be transferred where possible. Flexibility may be exercised where possible, with special considerations made by TYC at our sole discretion on a case-by-case basis.
5.8 Rescheduling policy: Any rescheduling of yacht charter is subject to our rescheduling policy. Charterer may reschedule the charter subjected to availability and terms and conditions.
(A) Rescheduling made more than 1 month prior to the charter date is provided free of charge.
(B) Rescheduling made less than 1 month prior to the yacht charter date, full payment of the charter fee will be charged, with a refund of up to 50% allowed at TYC’s sole discretion.
(C) Any reschedules made within office hours count towards the effective rescheduling period stated above. Rescheduling made after office hours will be counted beginning from the next working day.
(D) Should Charterer reschedule a weekend charter slot to a weekday charter slot (from a higher-value charter to a lower-value charter), no refunds (whether cash or credit) on the difference of the charter fees will be provided.
(E) Rescheduled bookings must be placed within 1 month from the original booking date. Otherwise the booking will be taken as a new request.
5.9 An administration fee of RM300 applies for each cancellation. Administration fee may be waived subject to special consideration on a case-by-case basis.
5.10 Late policy:
(A) TYC reserves the rights to consider the charter as cancelled should the charterer be more than an hour late from the stipulated start time.
(B) The charterer and guests are advised to be on time. No time compensation will be given for late arrival, and charter timings shall proceed as according to the stipulated timing as agreed upon, and stated on the invoice.
5.11 No-show policy: Arrival one hour after the stipulated charter start timing shall be considered as no-show, unless the coordinator is being notified. No refunds will be given for no-shows, and the charter shall be considered as fulfilled.
5.12 Time extension policy: Any time extension should be requested at least 3 days in advance, prior to charter date. TYC may allow impromptu time extension with cash payments on the spot, subject to the yacht availability and the sole discretion of TYC.
5.13 The charterer shall make all attempts and exhaust all means of communications to contact the coordinator from TYC before the charter. Coordinator details (name and mobile number) will be provided to the client along with the charter details.
5.14 Additional charges may apply for special requests such as cruising to other requested destinations. Overseas charters, weekly charters or extended long-term charters are available upon request.
5.15 TYC reserves the right to cancel any charter in the event of any unforeseen circumstances. In such cases, we may mutually agree on a later date of charter. Claims for any damages and/or inconvenience caused will not be entertained.
5.16 TYC reserves the sole and exclusive right to cancel the charter if the captain in his reasonable opinion declares that the sea or weather conditions are not suitable for the charter prior to the scheduled yacht charter and there are reasonable concerns over the safety of personnel and yacht. The captain of the yacht at all times has full authority over the safety of the yacht and personnel and at any time can terminate such charter and return to the marina where, in the reasonable opinion of the captain, there is reasonable possibility of danger to the yacht and personnel. If such an event is due to technical reasons, TYC will apply the cancellation policy detailed above. If such an event is due to the unsafe behaviour (e.g. excessive alcohol consumption) of the charter guests during the charter, which shall be at the sole discretion of the captain, there will be no cancellation refund. TYC reserves the sole and exclusive right to recall the vessel upon the forecast or occurrence of severe weather. If charterer elects to prematurely end the charter, the charter is deemed cancelled and there will be strictly no refund.
5.17 Once the yacht has departed the Marina, the charter is considered to have been fulfilled and no cancellations or refunds are provided.
5.18 The Charterer agrees that the yacht shall be employed exclusively as a pleasure vessel for the sole and proper use of the Charterer, Charterer’s family and guests, and shall not transport merchandise or carry passengers for pay, or race, or engage in any trade nor in any way violate the laws of Malaysia or of any government within the jurisdiction of which the yacht may be at any time and shall comply with the law in all other respects. The Charterer agrees not to sub-charter the yacht without written consent of the owner and TYC.
5.19 For yacht charter within Malaysia, this Agreement shall be construed and interpreted in accordance with the laws of Malaysia with the exception of any admiralty or maritime claims which shall be construed under the maritime, Maritime Port Authority of Malaysia.
5.20 Curtailment of Charter: In the event that the yacht is unable to sail due to mechanical reasons prior to the scheduled charter, clause 5.7 (F) shall apply. TYC will refund the full charter amount to the Charterer. In this event, there will be no further rights or claims for the damages or compensations from the Charterer.
5.21 TYC reserves the right to substitute another yacht of the same or lower charter value prior to the scheduled charter should the specified yacht not be available due to reasons beyond our control. If a substitute yacht is not possible, the cancellation policy shall apply.
5.22 Charterer shall indemnify and acknowledge that TYC and its employees shall not be held liable for any death, loss or injury arising from Charterer’s and the guest’s use of the yacht, its equipment or dinghy, or any activities.
5.23 The Charterer is liable for loss of or damage to the yacht or its equipment that results from the negligence or willful misuse by Charterer, Charterer’s family and guests. Determinations of negligence or willful misuse are made at the sole discretion of TYC. Any damages done to the yacht will be recorded. The charterer would be responsible on behalf of their guests to rectify or to pay for the repair cost.
5.24 All yacht charters are bound to the general terms and conditions (“General Terms”) as stated on this document. By chartering a yacht from TYC, you agree to our General Terms as well as any Additional Terms that may apply for each yacht on a per-charter basis. In the event General Terms and Additional Terms conflict, the Additional Terms shall take precedence.
6 EXCLUSION OF WARRANTIES
6.1 NOTHING IN THESE TERMS, INCLUDING SECTIONS 6 AND 7, SHALL EXCLUDE OR LIMIT TYC’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
6.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”
6.3 IN PARTICULAR, TYC, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:
(A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS
(B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR,
(C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
6.4 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TYC OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
6.5 TYC FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7 LIMITATION OF LIABILITY
7.1 SUBJECT TO OVERALL PROVISION IN PARAGRAPH 6.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT TYC, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR:
(A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY.. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;
(B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU.
7.2 THE LIMITATIONS ON TYC’S LIABILITY TO YOU IN PARAGRAPH
7.3 ABOVE SHALL APPLY WHETHER OR NOT TYC HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
8 Changes to the Terms
8.1 TYC may make changes to the General Terms or Additional Terms from time to time. When these changes are made, TYC will make a new copy of the General Terms available at https://www.theyachtclub.my/terms-and-conditions and any new Additional Terms will be made available to you from within, or through, the affected Services.
8.2 You understand and agree that if you use the Services after the date on which the General Terms or Additional Terms have changed, TYC will treat your use as acceptance of the updated General Terms or Additional Terms.
9 General legal terms
9.1 The Terms constitute the whole legal agreement between you and TYC and govern your use of the Services (but excluding any services which TYC may provide to you under a separate written agreement), and completely replace any prior agreements between you and TYC in relation to the Services.
9.2 You agree that TYC may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services.
9.3 You agree that if TYC does not exercise or enforce any legal right or remedy which is contained in the Terms (or which TYC has the benefit of under any applicable law), this will not be taken to be a formal waiver of TYC’s rights and that those rights or remedies will still be available to TYC.
9.4 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
9.5 The Terms, and your relationship with TYC under the Terms, shall be governed by the laws of Malaysia without regard to its conflict of laws provisions. You and TYC agree to submit to the exclusive jurisdiction of the courts located within Malaysia to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that TYC shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
09 October, 2020