In these Terms and Conditions the following words have the following meanings:
A. “YSS”: shall mean Yacht Stevedore Solutions LLC of 750 W Sunrise Blvd, Fort Lauderdale, FL 33311
EIN Number: 87‐1500232, State File Number: L21000299971
It is acknowledged and expressly agreed that YSS includes all its directors, officers, employees, agents, subcontractors, and representatives acting on YSS’s behalf, including, without limitation to, associated or affiliated group companies of YSS and their employees.
B. “Customer”: Shall mean any Carrier or any Marine Project Cargo Owner party to any Contract with YSS. Collectively referred to as “Customer”.
C. “Carrier”: shall mean any person, company, vessel or vehicle named or referred to as the Carrier of the Marine Project Cargo in the Contract, including but not limited to the vessel, vessel owner, vessel charterer, vessel operator or manager, forwarder or NVOCC.
D. “Marine Project Cargo Owner”: means every natural or legal company or person who owns, or provides YSS with a request or instruction to arrange Services relating to the Marine Project Cargo, together with their employees, agents, servants, or subcontractors and shall include the shipper, receiver, consignee and/or any person or company who owns or is or may become entitled to the possession of the Marine Project Cargo and any/all persons or companies acting on behalf of such persons or companies.
E. “Marine Project Cargo” means the cargo or other project cargo which is subject to the Services,
including boats, yachts, watercraft, separate parts, supports, cradling, cribbing, lashing and securing
equipment, contents and appurtenances which are to be loaded or discharged and secured as specified or referred to in the Contract.
F. “Services” Stevedoring services provided at the Port which shall include such cargo handling and/or stevedoring services and in such a manner as YSS in its reasonable discretion considers appropriate and expedient for each particular vessel or truck or railcar or for each particular consignment of cargo unless prior written agreement to the contrary is obtained.
G. "Dangerous Goods" means explosives, radioactive material, and dangerous weapon, drug, poison, damaging article or substance or any article or substance likely to encourage vermin or other pests or likely to cause infection or any other article or substance that, in the sole opinion of YSS, present a similar hazard.
H. "Port" means Port Everglades.
I. "Fees" means the Tariff price published by YSS from time to time for the provision of the Services.
2. APPLICATION AND FORMATION OF THE CONTRACT
A. These Terms and Conditions shall apply to all YSS Contracts for the provision of Services by YSS, to the exclusion of all other terms and conditions including any terms and conditions which the Customer may purport to apply unless agreed and accepted expressly in writing by YSS. Any confirmatory action or acceptance, and/or the commencement of the provision of the Services shall be deemed conclusive evidence of the Customer’s acceptance of these Terms and Conditions.
B. The Customer, or the Customer’s authorized agent, may at any time provide YSS with a written Order for Services. Each Order shall specify the Services to be provided/performed, and the Performance Location. An Order shall not constitute a binding obligation on YSS to provide the Services. An Order shall only be deemed accepted by YSS if confirmed in writing. The Customer shall not be entitled to amend or withdraw an accepted Order once a confirmation is issued. YSS has absolute discretion to accept, or reject and Order, and may refuse an Order without reason.
C. A Contract between Customer and YSS, which shall incorporate these Terms and Conditions, shall come into
effect on the date and time of YSS’s written acceptance of an Order. Each written acceptance shall be deemed a separate Contract.
3. PERFORMANCE, FEES AND PAYMENT
A. In consideration for the Customer paying the Fees, YSS shall perform the Services in accordance with the Contract. For the purposes of the Contract, performance by any subcontractor, servant or agent nominated by YSS shall be deemed to be performance by YSS.
B. The Fees payable by the Customer in respect of any Services shall be set out in the YSS Tariff and/or as confirmed in YSS’s confirmation. Fees are incurred upon acceptance by YSS of an Order and are nonrefundable unless the Contract is Terminated by YSS.
C. Standby fees will be applicable when in the event of delays which are not the fault of YSS, including, but not limited to, weather, port congestion, berth availability or vessel delays.
D. If the condition of Customer’s Marine Project Cargo is damaged or is not in customary good condition, and/or if YSS is called upon to handle such cargo in distressed conditions, then the originally agreed or Tariff rates will not apply and additional charges will be assessed and charged.
E. Any and all taxes, duties and fees, due on or with respect to any Marine Project Cargo of the Customer, or the import or export thereof, shall be for the account of Customer. Customer shall reimburse YSS for all such taxes, duties and fees which may be imposed upon YSS after receipt of an invoice therefor in accordance with the terms of Section 4 hereof.
F. YSS may issue its invoice(s), or an interim invoice(s), for the Services at any time after a Contract is form, irrespective of whether the Services have been commenced or not. The Customer shall pay all invoices in full in cleared funds within 3 business days of the issue date of each invoice.
G. Time of payment is of the essence. Where sums due hereunder are not paid in full by the due date YSS may, without limiting its other rights, charge interest on such sums at 5% per month pro rata.
4. LIMITATION OF LIABILITY AND INDEMNIFICATION
A. The extent of the parties’ liability under or in connection with these Terms and Conditions and the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause.
B. The total aggregate liability of YSS, for a breach of its obligations under the Contract, shall not exceed the sum of the Five Hundred US Dollars ($500) per package and freight unit limitation set forth in the United States Carriage of Goods by Sea Act. or, if that statute is not applicable, the limitation of liability provisions in any similar applicable foreign law, or if not applicable, the fees paid by the Customer for the Services under the Contract (and in any event the lessor).
C. Further, YSS shall not be liable for any:
i. Loss or damage to the Marine Project Cargo, loss of hire or charter, demurrage or detention, or
consequential, indirect, enhanced, or special losses whatsoever or howsoever arising, whether
foreseeable or not, whether advised as possible or not.
ii. Of the following (whether direct or indirect): loss of profit; loss of data; loss of use; loss of
production; loss of contract; loss of opportunity; loss of savings, discount or rebate (whether
actual or anticipated); harm to reputation or loss of goodwill.
iii. Damage to any vessel, truck or railcar, its equipment, gear, machinery, or appurtenances (as
applicable), and or any property of the Port even if such damage is caused by the negligence of
iv. Delay in or failure of performance of Services caused Force Majeure. Force Majeure shall mean
any event or sequence of events beyond YSS’s reasonable control preventing or delaying it
from performing its obligations under this Agreement. All/any additional costs which may be
incurred as a result of a Force Majeure event, including but not limited to, additional Services,
storage charges, liabilities to third parties for costs such as, demurrage for vessels or trucks or
rail cars, insurance premiums etc shall be charged to the Customer.
D. Notwithstanding any other provision of this Agreement, the liability of the parties shall not be limited in any way in respect of the losses which cannot be excluded or limited by applicable law.
E. Further, unless caused by YSS’s gross negligence or wilful misconduct, the Customer shall indemnify and hold YSS harmless, on demand, against any and all liabilities, costs, expenses, damages and losses (including but not limited to any interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered, threatened or incurred by YSS, arising out of or in connection with any claim made against YSS by a third party, arising out of or in connection with the Services howsoever or whatsoever.
F. The Customer shall ensure that any contracts of carriage for the Marine Project Cargo, as may be evidenced by a Customer’s bill of lading, to which YSS provides Services, shall expressly include YSS as beneficiaries of all rights, indemnities and limitations of liability contained in such bill of lading. Further the Customer shall extend to YSS any and all defenses and exemptions from or limitations of liability to which Customer is entitled, including but not limited to, the Five Hundred US Dollars ($500) package and freight unit limitation set forth in the United States Carriage of Goods by Sea Act., or, if that statute is not applicable, the limitation of liability
provisions in any similar applicable foreign law. To the extent the carrier waives any rights to limitation under the bill of lading, the Customer warrants to add YSS as co assured on its cargo insurance policy.
G. Any claim by the Customer against YSS arising in respect of any Service provided by YSS, or which YSS has Contracted to provide, shall be made in writing and notified to YSS within 14 days of the date upon which the Customer became, or ought reasonably to have become, aware of any event or occurrence alleged to give rise to such claim, and any claim not made and notified as aforesaid shall be deemed to be waived and absolutely barred, except where the Customer can show that it was impossible for him to comply with this time limit, and that he has made the claim as soon as it was reasonably possible for him to do so. Notwithstanding the aforesaid, YSS shall in any event be discharged of all liability whatsoever and howsoever arising in respect of any Service provided for the Customer, or which YSS has Contracted to provide, unless suit be brought and written notice thereof given to YSS within three months from the date of the event or occurrence alleged to give rise to a cause of action against YSS.
A. Cargo Insurance: The Customer Warrants that the Marine Project Cargo is covered by an all‐risks insurance policy to cover any loss or damage to the Marine Project Cargo during the provision of Services by YSS. The Customer agrees to provide evidence of such insurance on demand. It is accordingly acknowledged that YSS has not arranged and shall not be under any obligation to arrange insurance coverage for or on behalf of the Customer or the Marine Project Cargo against any risks whatsoever.
B. Liability Insurance: YSS shall maintain workers compensation insurance as required by applicable state law for YSS’s employees, agents and subcontractors, customary employer’s liability insurance (including any insurance required to be maintained under the United States Longshore and Harbor Workers Compensation Act) and any customary commercial general liability insurance. Evidence of said policies will be made available within 7 days of a Customer request in electronic form.
6. OBLIGATIONS AND WARRANTIES
A. The Customer warrants:
i. The safe and good customary condition, and accuracy of all details pertaining to the Marine
Project Cargo, as set out in the Order.
ii. That the Marine Project Cargo or any part thereof does not amount to being Dangerous Goods.
iii. The seaworthiness of all Vessels upon which or to/from which Services relating to the Marine
Project Cargo will be provided.
iv. Safe access and safe working conditions for YSS on all Vessels, Trucks and Railcars for providing
Services to the Marine Project Cargo.
v. All Vessels, Trucks and Rail Cars which Services relating to the Marine Project Cargo will comply
with all regulations, rules and laws applicable to the same.
vi. All lifting, lashing and cribbing equipment provided by the Customer shall be certified for use
and in good safe condition.
vii. That it shall make every effort to facilitate the operations of YSS, whether by permitting YSS to
use all or any structure or items of equipment owned or used by the Customer whether on the Vessel, Truck Railcar or otherwise.
B. Where in the sole opinion of YSS the Services to be performed in accordance with the Contract are rendered unusually complicated or exceptionally difficult by the nature of the cargo, including if the Cargo is determined to be damaged or not in its customary good condition, and/or the Vessel/Truck/Rail Car and/or storage conditions and/or any other factor whatsoever YSS may in its absolute discretion elect to perform or provide or continue to perform or provide the Services to the Customer, in a particular manner, Tariff rates shall not apply. YSS shall advise of any additional Fee applicable, specifying by notice in writing to the Customer the manner in which such Services are to be undertaken. Such notice shall constitute an agreement, unless a written objection is made within 12 hours or prior to the commencement of the Services, whichever the earlier. In the event the Customer does not accept the additional Fee, the Services will be deemed completed, with no further obligations YSS, whether performance has taken place or not and the Fee will remain due and payable.
C. In the case of inaccurate or insufficient information as to the nature of the Services required or as to the nature of the goods the subject of such Services being given to YSS by any person, where in the reasonable belief of YSS prejudice might be caused to the safety of operations and personnel, decline to perform or provide or to continue to perform or provide all or any Services and no liability shall be attached to YSS in consequence of such non‐commencement and or cessation of services. Such event shall not be deemed a Termination of the Contract and accordingly Fees shall remain due and non refundable.
YSS may terminate this Contract immediately upon written notice to Customer, without cause. YSS shall have no liability whatsoever to the Customer or to any other party for any loss or damage whatsoever arising out of the cancellation/termination of this Contract by YSS including but not limited to loss of freight, loss of charter hire, loss of profit, loss of production, loss of or decreased value of the Goods, loss of or damage to goodwill or reputation, loss of market, loss of business, loss of contracts, loss of opportunity etc., whether such losses be direct or indirect, or any other losses were foreseeable and notwithstanding that YSS had been advised of the possibility that such losses were in the contemplation of the Customer or any third party.
8. GENERAL PROVISIONS:
A. The Contract and any claim, controversy or dispute arising under or related to this Contract, shall be governed and construed in accordance with the laws of the State of Florida without reference to the conflict of laws provisions thereof. YSS and the Customer hereto irrevocably submit to the exclusive jurisdiction of the courts of the State of Florida, County of Miami Dade, in connection with all matters relating hereto and waive any objection to the laying of venue in, and any claim of inconvenient forum with respect to, these courts. The parties hereby further agree that service of process upon any party may be effected pursuant to United States mail.
B. In addition to all statutory and common law liens, the Customer grants YSS a contract lien on all Marine Project Cargo and documents relating to the Marine Project Cargo in its possession, custody or control for any and all sums due at any time to YSS from the Customer on any account whatsoever, whether relating to Marine Project Cargo belonging to, or Services provided by or on behalf of YSS to the Customer. Any Tariff or storage charges shall continue to accrue on any Marine Project Cargo detained under lien; further YSS shall be entitled, on at least 21 day’s notice in writing to the Customer, to sell or dispose of or deal with such Marine Project Cargo or documents as agent for, and at the expense of, the Customer and apply the proceeds in or towards the payment of such sums. YSS shall, upon accounting to the Customer for any balance remaining after payment of any sum due to YSS, and for the cost of sale and/or disposal and/or dealing, be discharged of any liability whatsoever in respect of the Marine Project Cargo or documents.
C. Each party undertakes that it shall not at any time during the Agreement or after its termination disclose to any person any Confidential Information disclosed to it by the other Party, except:
i. as may be required for the proper performance of the Services;
ii. if it is already in the public domain other than as a result of a breach of the Agreement; or
iii. as may be required by law, court order or any governmental or regulatory authority.
D. Intellectual Property Rights made available by YSS to the Customer are and shall remain the property of YSS. Intellectual Property Rights produced by the Customer in connection with the Services shall remain vested in the Customer, but YSS shall have an irrevocable royalty‐free and non‐exclusive license to copy and use such documents and to reproduce the designs contained in them for any purpose related to the Services. Such license shall carry the right to grant sub‐licenses and this license and such sub‐licenses shall be transferable to third parties without any requirement to seek authority. For the avoidance of doubt YSS has the permission of the Customer to use any photographs or videos taken by YSS or a third party acting on behalf of YSS of the Marine Project Cargo for marketing purposes on a royalty‐free basis.
E. The Customer may not assign the Contract. YSS may assign the benefit of the Contract without obtaining the consent of the Customer. Save as provided for by this clause, no provision of the Contract is intended to confer a benefit on, or to be enforceable by, any person who is not a party to the Contract.
F. Any notice or other communication given by a party under the Contract shall be in writing and in English.
G. Each party shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to them and shall maintain such authorizations and all other approvals, permits and authorities as are required from time to time to perform their obligations under or in connection with this Contract.
Copyright © 2022 YSS - All Rights Reserved.
Yacht Stevedore Solutions LLC
750 W Sunrise Blvd, Fort Lauderdale FL33311
EIN Number 87-1500232 State File Number L21000299971
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