1. INTERPRETATION
1.1 In these Conditions the following words have the following meanings:-
"the Boat" means the narrowboat specified in the Booking Confirmation (as defined below) and agreed in the Contract to be hired to the Customer by the Company for the duration
of the Hire Period;
"Collection Point" means the place where the Boat is to be made available to the Customer as specified in the Booking Confirmation;
"the Company" means WillowWren Kearns Limited trading as Middlewich Narrowboats of CanalTerrace.Middlewich,Cheshire, CW10 9BD;
"Conditions" means these Conditions of Hire;
"Contract" means the contract between the Company and the Customer for the hire of the Boat, incorporating these Conditions;
"Customer" means the person(s),firm or company who hires the Boat from the Company;
"Hire Period" means the duration of the Customer's hire of the Boat as specified in the Booking Confirmation;
"Price" means the price specified in the Booking Confirmation and payable by the Customer for the hire of the Boat for the Hire Period;
"Special Conditions" means all specific conditions relating to the hire of the Boat by the Customer (including but not limited to descriptions, prices, place and time of collection) contained in or referred to in the Booking Confirmation. If there is a conflict between these Conditions and the Special Conditions then the Special Conditions shall prevail.
2. BOOKINGS
2.1 The Contract shall be governed by these Conditions and any Special Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply).
2.2 The submission by a Customer of a booking form in the terms from time to time published by the Company whether by post or on-line or the placing of a telephone booking constitutes a formal offer by the Customer to hire the Boat for the Hire Period but a Contract will not come into existence until the Company despatches to the Customer an acceptance of booking (a "Booking Confirmation").
2.3 Any quotation is issued by the Company on the basis that no contract will come into existence until the Company despatches a Booking Confirmation to the Customer.
2.4 The Company will be under no liability for any booking form received whether by post or on-line or the placing of a telephone booking until the Booking Confirmation is delivered to the Customer or (if earlier) the Company makes the Boat available to the Customer at which time a Contract will be formed between the Company and the Customer.
2.5 Any representations,advice or recommendation given by the Company or its employees or agents to the Customer relating to the Boat or the hire thereof which is not confirmed by the Company in writing is followed or acted upon entirely at the Customer's own risk, and accordingly the Company shall not be liable for any such representation, advice or recommendation which is not so confirmed.
2.6 The information set out in both the on-line and paper brochure of the Company for the time being, including boat specifications, accommodation details,facilities and equipment are for guidance only and shall not form part of the Contract.
2.7 The Customer must ensure that the terms of its booking form or telephone booking submitted or placed in accordance with Condition 2.2 are complete and accurate and the Company shall not be liable for any errors in or omissions from such booking form or telephone booking.
3. CANCELLATION/ALTERATION TO BOOKING
3.1 A Contract may only be cancelled or varied with the Company's written consent.
3.2 Should the Customer wish to cancel the Contract then it shall forthwith notify the Company in writing and provided that such notification of cancellation is received not less than 3 months prior to the date that the Hire Period was due to commence then the Company shall refund the Deposit (as defined below) paid by the Customer less a sum equivalent to 15% of the Price which the Company shall be entitled to retain in order to defray its administration and other expenses in re-letting the Boat.
3.3 In the event that the Customer notified the Company in writing of its desire to cancel the Contract less than 6 weeks prior to the date that the Hire Period was due to commence then upon receipt of such notification the Company shall use reasonable endeavours to re-let the Boat to another customer for the Hire Period.
3.4 In the event that the Company successfully re-lets the Boat for the entire Hire Period on terms equivalent to those agreed with the Customer then the Company shall refund the Deposit paid by the Customer less a sum equivalent to 15% of the Price which the Company shall be entitled to retain in order to defray its administration and other expenses in re-letting the Boat.
3.5 If the Company is unable to re-let the boat for the Hire Period then the Customer shall be bound to pay the full balance of the Price in accordance with these Conditions. In this regard the Company would particularly refer the Customer to Condition 4 - Hardship Cancellation Scheme Insurance.
3.6 In the event that a Customer wishes to vary the Contract by changing to a different boat of the Company or a different hire period, for example, then the Company may, at its sole discretion, agree to such a variation provided that the Customer shall pay the Company a £25 administration fee in respect of such variation.
4. HARDSHIP CANCELLATION SCHEME INSURANCE
4.1 Save as provided at Condition 3 above, once a Contract has been entered into for the hire of a Boat by a Customer then the Customer shall, notwithstanding the fact that it is unable, for any reason whatsoever to take possession of the Boat, be responsible for paying the full amount of the Price.
4.2 Although this is a common provision in contracts of this nature it is not always appreciated by customers and can in certain circumstances cause problems for customers. Accordingly, the Company requires the Customer to take out Hardship Cancellation Insurance (as detailed on the booking form) when making the booking, unless the Customer specifically confirms in writing on the booking form or otherwise in writing in the case of telephone bookings that it/he understands that in the event of cancellation it/he will be liable to pay the full amount of the Price.
4.3 The terms of the Hardship Cancellation Insurance are set out on the booking form which will be made available on request by Customers placing telephone bookings but cover includes, without limitation, cancellation due to redundancy and subsequent unemployment, jury service of the Customer or named members of its/his party, death, illness, accident or maternity affecting the Customer, named members of his/its party or their close relations.
5. PRICE AND PAYMENT
5.1 Subject as set out in Condition 5.2, the Customer shall send a deposit equal to 25% of the Price ('the Deposit") when sending its booking form to the Company by cheque drawn in favour of the Company. In the case of telephone bookings or bookings made on-line, the Customer shall pay the Deposit by credit or debit card when placing the booking.
5.2 The balance of the Price (together with the Waiver Fee (as defined below)) shall be payable not less than 6 weeks before the start of the Hire Period, by cheque drawn in favour of the Company. For bookings made less than 6 weeks before the start of the Hire Period the full price must be paid when placing the booking, by cheque drawn in favour of the Company or in the case of telephone bookings made on-line, by credit or debit card when placing the booking.
5.3 Payment shall be made in pounds sterling.
5.4 The Customer shall make no deduction of any type from any such payment.
5.5 Time for payment shall be of the essence and failure by the Customer to pay in accordance with the provisions of this Condition (including, for the avoidance of doubt, by reason of the dishonouring of any cheque on first presentation) shall entitle the Company, without prejudice to its rights to damages, to cancel the Contract.
5.6 In addition to the Company's rights under Condition 5.5, the Customer shall be liable to pay interest (compounded daily) on any amounts outstanding and owed by it to the Company (both before and after judgment) at the rate of 3 per cent above the base rate for the time being in force of the Company's chosen bank,accruing on a daily basis until payment is made.
5.7 No payment shall be deemed to have been received until the Company has received cleared funds.
6. HIRE PERIOD
6.1 The Company will use reasonable endeavours to ensure that the Boat is made available to the Customer at the Collection Point at the time shown on the Booking Confirmation on the first day of the Hire Period and the Customer shall ensure that it is available to take possession of the Boat at such time. If the Customer is unable to take possession of the Boat at such time it shall forthwith notify the Company by telephone and the Company will endeavour to arrange an alternative time provided that the Company shall not be obliged to make a Boat available to a Customer after 5.30pm on any day.
6.2 The Customer shall be responsible for checking the condition of the Boat and the inventory immediately after taking possession of it and shall sign a Boat Acceptance and Inventory Form in the Company's standard terms for the time being ("the Form") before leaving the Collection Point. In the event that the Customer fails to sign the Form before departure then the Customer shall be deemed to have agreed that the Form is correct in all respects.
6.3 The Customer shall take all reasonable care of the Boat and shall return it, together with its equipment and contents, to the Company at the Collection Point no later than the time specified in the Booking Confirmation in a clean and tidy condition and in the same condition as set out in the Form.
6.4 In the event that:
6.4.1 the Customer fails to return the Boat at the said specified time the Company shall have the right to levy a late payment charge of £50 per hour, such charge to be payable forthwith on demand;
6.4.2 the Boat is returned otherwise than in a clean and tidy condition or otherwise than in accordance with the Form then the Company shall be entitled to levy additional charges equivalent to the costs incurred by it in reinstating the condition of the Boat;
6.4.3 any delay in returning the Boat or failure to return the Boat in a clean and tidy condition or otherwise in accordance with the Form causes the Company to incur further fees and expenses or any loss as a result of the Boat being unavailable for the next hirer the Company shall be entitled to levy additional charges of an equivalent amount to such further fees and expenses or loss.
7. INSURANCE
7.1 The Company shall insure the Boat, its fixtures, fittings and equipment against loss or damage.
7.2 The price the customer pays includes damage cover representing the excess payable under the Boat insurance referred to at Condition 6.1.
7.3 The insurance referred to at Condition 7.1 above, shall not cover:
7.3.1 damage to the Boat arising directly or indirectly from:
7.3.1.1 [ Rudder and tiller damage];
7.3.1.2 [ Roof equipment ( boat shafts, chimneys, TV aerials and buckby cans where supplied ];
7.3.1.3 malicious or deliberate damage by the Customer, members of its party, any persons authorised by it/him, or its/his invitees;
7.3.1.4 Speeding
7.3.1.5 Ceramic cooker hob damage
7.3.2 the late return of the Boat; or
7.3.3 the return of the Boat in a dirty condition or otherwise than in accordance with the Form;
and the Customer will indemnify the Company against any damage to the Boat or other costs, damages, expenses, liability and claims howsoever arising from the negligence, neglect, default or wilful damage of the Customer, members of its/his party, any persons authorised by it/him, or its/his invitees to the extent that they are not covered by the Company's said insurance.
7.4 The insurance referred to in Condition 7.1 shall not cover personal injury to the Customer or members of his/its party, any persons authorised by it/him or its/his invitees nor personal items, goods or effects of the Customer or such members, persons or invitees. The Customer is strongly advised to obtain personal holiday health and personal effects insurance cover in an appropriate sum.
8. UNSUITABLE HIRERS
8.1 On delivery of the Boat, the Company shall provide to the Customer instructions, demonstrations and other guidance as it considers reasonably necessary to enable the Customer to drive and otherwise operate the Boat.
8.2 In the event that the Company considers that the Customer or any member of its/his party is an unsuitable hirer, either because the Company deems that the Customer or such member has failed to demonstrate a reasonable standard of competence following instruction in boat handling or for any other reason, including, without limitation, suspected influence of alcohol or drugs, being or appearing to be under the age of 18 or suspected intention to use the Boat for commercial purposes, the Company reserves the right to forthwith cancel the Contract and the Company's sole obligation and the Customer's only remedy in such circumstances will be for the refund of the Price.
9. CUSTOMER'S OBLIGATIONS
9.1 The Customer must be a minimum of 18 years of age.
9.2 The Customer agree not to:
9.2.1 permit a person under the age of 18 to drive the Boat unless closely supervised by a competent person over the age of 18;
9.2.2 tow another boat or vessel or allow the Boat to be towed, save in the event of a breakdown or emergency;
9.2.3 travel during the hours of darkness;
9.2.4 break any speed limits or race or travel at a speed which creates a breaking wash or disturbs or inconveniences other waterway users;
9.2.5 take onto or use the following items on the Boat:
inflammable liquids or substances, gas cylinders, barbecues, car batteries, firearms or other dangerous or hazardous items, dinghies, canoes, inflatables, portable heaters, bicycles, vehicles, electrical equipment or appliances without the Company's prior written consent,
9.2.6 permit any persons, other than those named on the Booking Confirmation, to travel on or occupy the Boat;
9.2.7 use the Boat for business purposes;
9.2.8 carry any live fishing bait on the Boat; or
9.2.9 attempt to travel or navigate any tidal waters without the prior written consent of the Company.
9.3 The Customer agrees to:
9.3.1 comply at all times with the reasonable instructions of the Company relating to the use and operation of the Boat; and
9.3.2 comply in all respects with all applicable rules, regulations and legislation relating to the use of waterways, including, without limitation, all byelaws, navigational limits, or instructions and advice of British Waterways and other navigational authorities.
9.4 The Customer agrees to indemnify the Company against any damage to the Boat or other costs, damages, expenses, liability and claims howsoever arising from failure by the Customer to comply with the provisions of this Condition to the extent that they are not covered by the Company's policies of insurance.
10. ACCIDENTS
10.1 In the event of any accident or damage to the Boat, the Customer shall forthwith:
10.1.1 notify the Company by telephone of the accident or damage and the circumstances thereof;
10.1.2 obtain and record the name and registration number of any other boat involved (if applicable);and
10.1.3 obtain and record the names and addresses of all other persons involved, including the hirer and the owner of any other boat involved (if applicable).
10.2 The Customer must not take responsibility for the accident or admit liability in respect thereof.
10.3 In the event that the Company's insurance cover is invalidated by any failure on the part of the Customer to comply with the provisions of this Condition then the Customer shall indemnify the Company in respect of all claims, loss, damage or expenses incurred.
11. MAINTENANCE, REPAIRS AND BREAKDOWN
11.1 The Customer shall notify the Company in the event of breakdown or mechanical problems with the Boat and shall provide full details and comply with the Company's instructions in the event of any such breakdown or mechanical failure.
11.2 The Customer must not undertake or have undertaken any repairs to the Boat without the Company's prior approval.
11.3 On receipt of notification pursuant to Condition 11.1 the Company shall use reasonable endeavours to repair, or if necessary, substitute the Boat as soon as is reasonably practicable.
12. CONSEQUENCES OF BREAKDOWN OR ACCIDENT
12.1 Following any accident or mechanical breakdown, the Company may, at its sole option:
12.1.1 repair the Boat or substitute the Boat with another boat of similar size and specification; or
12.1.2 terminate the Contract and reclaim possession of the Boat.
12.2 Subject to Condition 12.4, in the event that the Company cancels the Contract following an accident or breakdown the Company's sole obligation to the Customer shall be to refund part of the Price calculated on a half day pro rata basis having regard to the duration of the remainder of the Hire Period. For the avoidance of doubt, the Waiver Fee shall not be refundable.
12.3 Subject to Condition 12.4, in the event that the Company elects to repair the Boat or to substitute the Boat following an accident or breakdown the Company's sole obligation to the Customer shall be to refund part of the Price to the Customer, such refund to be calculated having regard to the duration of the interruption to the Hire Period:
12.3.1 for repairs or substitution taking not more than half a day - no refund shall be payable; and
12.3.2 for repairs and substitution taking more than one day - to refund part of the Price calculated on a half day pro rata basis having regard to the duration of the repair or substitution.
12.4 In the event that the accident or breakdown has been directly or indirectly caused by the Customer's breach of any of the provisions of these Conditions, including, without limitation, Conditions 9 and 10, the Company shall not be obliged to repair or substitute the Boat or be liable to refund any sums to the Customer whatsoever.
13. FORCE MAJEURE
The Company shall be under no liability for any delay or failure to perform its obligations under the Contract in the event that it is prevented or delayed by any act or circumstances beyond the Company's reasonable control including but not limited to Act of God, legislation, war, fire, drought, failure of power supply, lock-out, strike or other action taken by employees in contemplation or furtherance of a trade dispute.
14. LIMITATION OF LIABILITY
14.1 The following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of any breach of these Conditions and any Special Conditions and any representation, statement or tortious act or omission, including negligence arising under or in connection with the Contract.
14.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
14.3 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company's negligence or fraudulent representation.
14.4. THE CUSTOMER'S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 14.5:
14.5 Subject to Conditions 14.2 and 14.3:
14.5.1 the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation
or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the sum of £ 1,000,000 (one million pounds); and
14.5.2 the Company shall not be liable to the Customer for any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (as of costs) which arise out of or in connection with the Contract.
15 WAIVER AND SEVERANCE
15.1 Any indulgence granted by the Company to the Customer and any failure by the Company to insist upon strict performance of these Conditions shall not be deemed a waiver of any of the Company's rights or remedies nor be deemed a waiver of any subsequent default by the Customer.
15.2 The invalidity, illegality or unreasonableness in whole or in part of any Condition shall not affect the validity of (as applicable) any remaining part of that condition or of the remainder of these Conditions.
16 THIRD PARTIES
The Company and the Customer do not intend that any provisions of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
17 GOVERNING LAW
The interpretation and application of the Contract shall be in accordance with English Law and the Company and the Customer hereby agree to submit to the exclusive jurisdiction of the English Courts.