IMPORTANT NOTICE TO GUESTS
THIS CRUISE/TOUR RESERVATION CONTRACT AGREEMENT CONTAINS IMPORTANT LIMITATIONS ON THE RIGHTS OF PASSENGERS. IT IS IMPORTANT THAT YOU CAREFULLY READ ALL TERMS OF THIS CONTRACT, PAYING PARTICULAR ATTENTION TO SECTION 3 THROUGH 18, WHICH LIMIT OUR LIABILITY AND YOUR RIGHT TO SUE, AND RETAIN IT FOR FUTURE REFERENCE.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION FOR CERTAIN DISPUTES AND WAIVES ANY RIGHT TO TRIAL BY JURY TO RESOLVE THOSE DISPUTES. PLEASE READ IT IN ITS ENTIRETY.
a. This Cruise/Tour Reservation Contract Agreement (the 'Cruise Contract' or 'Agreement') describes the terms and conditions that will apply to the relationship between the Passenger (as defined in Section 2.f below) and the Operator (as defined in Section 2.b below) for the Vessel with respect to the Cruise or Tour covered by this Agreement. Except as otherwise expressly provided herein, this Agreement supersedes any other written or oral representations or agreements relating to the subject matter of this Agreement or the Cruise or the Tour. In the event of a direct conflict between a provision of this Cruise Contract and any provision stated elsewhere in effect at the time of booking, the Cruise Contract controls.
b. By making and paying for a reservation for a private cruise or sightseeing tour, whether or not expressly acknowledged by the Passenger, shall constitute the agreement by Passenger, on behalf of himself/herself and all other persons traveling under this Cruise Contract (including any accompanying minors or other persons for whom the reservation was made), to be bound by the terms and conditions of this Cruise Contract.
c. This Cruise Contract cannot be modified except in a writing signed by a corporate officer of Operator. In addition, Guest acknowledges the availability of and Guest agrees to abide by the Terms and Conditions, including but not limited to certain payment terms such as minimum deposit requirements and cancellations, which appear online at http://sailswfl.com/cruise-contract. In the event of any conflict between such website content and this Cruise Contract, the terms of this Cruise Contract shall prevail.
a. 'Agreement' or 'Contract' means the terms and conditions set forth in this Cruise Contract together with the Private Cruise or Sightseeing Tour fare due for your Cruise or Tour. Together, the items described in the preceding sentence shall constitute an agreement between Passenger and Operator for the Private Cruise or Sightseeing Tour.
b. "Operator" shall include: (i) the Vessel, or any substituted vessel; (ii) the Vessel's Operator; together with the owners, managers, charterers, affiliates, successors and assigns of the entities identified in subsections (i), (ii) and (iii) of this sentence. Operator also shall include the officers, directors, employees, agents, or crew of the entities identified in the preceding sentence; (iii) SAIL SWFL Sightseeing Cruises. The exclusions or limitations of liability of Operator set forth in the provisions of this Cruise Contract, as well as all rights, defenses or immunities set forth herein, shall also apply to and be for the benefit of agents, independent contractors, concessionaires and suppliers of Operator, as well as owners and operators of all shoreside properties at which the Vessel may call, as well as owners, designers, installers, suppliers and manufacturers of the Vessel, or any component parts of either, together with the employees and servants of each of the foregoing, and/or any launches, craft or facilities of any kind belonging to or provided by any of the entities identified in this paragraph.
c. “Cruise/Tour” means the specific cruise covered by this document, as the same may be modified and shall include those periods during which the Guest is embarking or disembarking the Vessel and those periods when the Guest is on land while the Vessel is berthed, anchored or underway.
d. 'Private Cruise Fare” or “Sightseeing Tour Fare' includes the amount due for the Private Cruise or Sightseeing Tour, whether such amounts are owing and/or have been paid by the Passenger, but does not include amounts due for other products or services such as any meals provided, photographs, gratuities, telephone calls, or medical services which can be purchased separately, nor does it include government or quasi-governmental taxes and fees, whether assessed on a per passenger, per vessel, per berth or per ton basis, nor any fuel surcharges, security surcharges or similar assessments made by airlines, trains, buses, hotels or other third parties which are subject to change and are due and payable by Passenger upon request.
e. 'Passenger' 'You,' 'Your,' or 'Guest' means all persons traveling under this Cruise Contract and persons in their care, together with their respective heirs and representatives. 'Passenger' shall include the plural and any use of the masculine shall include the feminine.
f. 'Vessel' means the sailing catamaran Old Glory or any other vessel owned, leased, chartered or operated by Operator on which Passenger may be traveling or against which Passenger may assert a claim, as well as any substituted vessel used in the performance of this Cruise Contract.
3. BAGGAGE, PROPERTY AND LIMITATIONS OF LIABILITY:
a. Baggage Limits and Prohibited Items. Each adult Passenger is permitted to carry onboard the Vessel only the wearing apparel and personal effects reasonably necessary for the cruise, including carry on bags, other bags, coolers, and similar items. In no event shall any Passenger bring on board the Vessel any illegal controlled substances, fireworks, live animals (except under the terms of Section 12.d below), weapons, firearms, explosives or other hazardous materials, or any other items prohibited by applicable law or Operator policy. Operator reserves the right to refuse to permit any Passenger to take on board the Vessel any item Operator deems inappropriate.
b. Liability for Loss of or Damage to Baggage. Unless negligent, Operator is neither responsible nor liable for any loss of or damage to Passenger's property, whether contained in luggage or otherwise.
c. Limitation of Liability for Lost or Damaged Property. Notwithstanding any other provision of law or this Agreement, Operator's liability for loss or damage to property is limited to $100.00 per Passenger. Notwithstanding any other provision of law or this Agreement, Operator's liability for loss or damage to property for the cruise shall be limited to $100.00 per Passenger, unless Passenger declares the true value of such property in writing to the Operator at the address specified in Section 10.a below and pays Operator within 10 days of final payment for the cruise, a fee of five percent (5%) of the amount that such value exceeds $100.00. In such event, Operator's liability shall be limited to its true declared value, but not exceeding $200.
d. Limited Carriage. Operator does not undertake to carry as baggage any tools of trade, household goods (including but not limited to appliances and furniture) fragile or valuable items, precious metals, jewelry, documents, negotiable instruments or other valuables, including but not limited to those specified in Title 46 of the United States Code, Appendix Section 181. Each Passenger warrants that no such item will be presented to Operator within any receptacle or container as baggage, and hereby releases Operator from any liability whatsoever for loss of or damage to such items when presented to Operator in breach of this warranty. In no event shall Operator be liable for normal wear or tear of luggage or property, or loss or theft of or damage to jewelry, cash, negotiable paper, photographic/electronic, medical or recreational equipment, dental hardware, eyewear, medications or other valuables unless they are deposited with Operator on the Vessel for safekeeping against receipt. Operator's liability, if any, for loss of or damage to valuables so deposited shall not exceed the amounts indicated in Section 3.c above.
4. MEDICAL CARE AND OTHER PERSONAL SERVICES:
a. Availability of Medical Care. Due to the nature of travel by sea and any land-based businesses or beaches visited, the availability of medical care onboard the Vessel and in port may be limited or delayed and medical evacuation may not be possible from the Vessel while at sea or from every location to which the Vessel sails.
b. Relationship with Service Providers. To the extent Passengers retain the services of medical personnel or independent contractors on or off the Vessel; Passengers do so at their sole risk. Any medical personnel attending to a Passenger on or off the Vessel, if arranged by Operator, are provided solely for the convenience of the Passenger, work directly for the Passenger, and shall not be deemed to be acting under the control or supervision of the Operator, as Operator is not a medical provider. Likewise, any onboard concessions are either operated by or are independent contractors on board the Vessel, on Transport or elsewhere and are provided solely for the convenience of Passenger. Even though the Operator shall be entitled to charge a fee and earn a profit for arranging such services, all such persons or entities shall be deemed independent contractors and not acting as agents or representatives of Operator. Operator assumes no liability whatsoever for any treatment, failure to treat, diagnosis, misdiagnosis, actual or alleged malpractice, advice, examination or other services provided by such persons or entities. Guest acknowledges that the Vessel's Captain and other providers of merchandise, entertainment and personal services are employees of independent contractors and that Operator is not responsible for their actions.
c. Payment for Medical or Personal Care Services. Passenger shall pay for all medical care or other personal services requested or required, whether onboard or ashore, including the cost of any emergency medical care or transportation incurred by Operator and any costs associated with the provision of medical services. If Passenger is unable to pay and the Operator pays for such expenses, then Passenger shall reimburse Operator for those expenses.
5. SHORE EXCURSIONS, TOURS, FACILITIES OR OTHER TRANSPORTATION:
a. All arrangements made for or by Passenger for transportation (other than on the Vessel) before, during or after the Cruise or Sightseeing Tour of any kind whatsoever, as well as air arrangements, shore excursions, tours, hotels, restaurants, attractions and other similar activities or services, including all related conveyances, products or facilities, are made solely for Passenger's convenience and are at Passenger's risk. The providers, owners and operators of such services, conveyances, products and facilities are independent contractors and are not acting as agents or representatives of Operator.
b. Even though Operator may collect a fee for, or otherwise profit from, making such arrangements and offers shore excursions it does not undertake to supervise or control such independent contractors or their employees, nor maintain their conveyances or facilities, and makes no representation, whether express or implied, regarding their suitability or safety.
c. In no event shall Operator be liable for any loss, delay, disappointment, damage, injury, death or other harm whatsoever to Passenger which occurs on or off the Vessel as a result of any acts, omissions or negligence of any independent contractors.
6. CANCELLATION, DEVIATION OR SUBSTITUTION BY OPERATOR:
a. Operator may for any reason at any time and without any prior notice, cancel, advance, postpone or deviate from any scheduled sailing, destination, or any activity on or off the Vessel, or substitute another vessel, destination, or activity. Except as provided in Section 6(d) below, Operator shall not be liable for any claim whatsoever by Passenger, including but not limited to loss, compensation or refund, by reason of such cancellation, advancement, postponement, substitution or deviation.
b. By way of example, and not limitation, Operator may, without liability, deviate from any scheduled sailing and may otherwise land Passenger and his/her property at any nearby port if Operator believes that the voyage or any Passenger or property may be hindered or adversely affected as a result of onboard hostilities, harbor blockages, navigation issues, prevailing weather conditions, breakdown of Vessel, docking difficulties, medical or life saving emergencies or any other cause whatsoever.
c. Operator shall have the right to comply with any orders, recommendations, or directions whatsoever given by any governmental entity (including but not limited to The United States Coast Guard, other local law enforcement agency, or by persons purporting to act with such authority and such compliance shall not be deemed a breach of this Cancellation Policy entitling the Passenger to assert any claim for liability, compensation or refund.
d. In the event that a Cruise is canceled or terminated early due to mechanical failures or foul weather (foul weather is defined as an active offshore thunderstorm/squall and/or sustained winds of 25 knots or greater), Passenger shall have a right to a full refund of the Cruise Fare if the Cruise is canceled in full, or a partial, pro-rated refund if the cruise is terminated early.
7. CANCELLATION OR EARLY DISEMBARKATION BY PASSENGER
a. Reservations made by phone or email require the payment at the time of booking of a nonrefundable deposit. That deposit amount shall not be refunded at any time after it has been paid, except in cases We decide to issue a refund.
b. Cruises that are cancelled prior to the sail date may be subject to a cancellation charge. The amount of the cancellation charge shall be determined as shown below and shall vary depending on how far in advance of the sail date the Operator receives notice of cancellation:
IF CANCELLATION IS MADE 30 days or more prior to the day of the cruise/ CANCELLATION CHARGE IS 0% (Full refund given)
IF CANCELLATION IS MADE WITHIN 29 days to 14 days / CANCELLATION CHARGE IS 25% of total fare
IF CANCELLATION IS MADE WITHIN 13 days to 3 days / CANCELLATION CHARGE IS 50% of total fare
IF CANCELLATION IS MADE WITHIN 2 days or less / CANCELLATION CHARGE IS 100% of total fare (No refund given)
c. Cancellation by the Passenger after the Cruise has begun, early disembarkation of the Passenger for any reason whatsoever, including pursuant to any provision of this Cancellation Policy, late arrivals, or “no-shows” shall be without any refund, compensation, or liability on the part of the Operator whatsoever.
d. If Operator received payment via credit/debit card, the refund will be made to that credit/debit card.
8. SUNSET CRUISES, LUNCH/DINNER CRUISES, DOLPHIN WATCHING CRUISES
a. Passengers who book a “Sunset” Cruise “Lunch/Dinner” Cruise, or “Dolphin Watching” Cruise are not entitled to any refunds if the sunset isn’t visible, if they don’t enjoy their meal or service ashore, or if dolphins aren’t spotted.
9. CONDITION OF THE VESSEL
a. If the Vessel is not completely spotless, clean enough to your liking, or in “Bristol Condition” as you understand the term, upon your embarkation, we sincerely apologize, and you are not entitled to any refunds.
10. PASSENGER'S OBLIGATION TO COMPLY WITH AGREEMENT, APPLICABLE LAWS, AND RULES OF OPERATOR; QUARANTINE; INDEMNIFICATION:
a. Compliance Obligation Generally. Passenger shall at all times comply with the provisions of this Agreement, all applicable laws, and rules, policies and regulations of the Operator, the Vessel and the Transport (as the same may be changed from time to time with or without notice). Passenger agrees not to enter any areas of the vessel designated for crew only, including crew quarters, under any circumstances whatsoever. Passenger further agrees that Operator may prohibit or restrict Passenger from bringing any alcoholic beverages for consumption onboard the Vessel and agrees to comply with any Operator policy covering such matters.
b. Passengers are solely responsible to maintain in their possession all valuables and personal items.
c. Passenger understands and agrees that Operator has a zero tolerance policy for illegal activity and shall report such activity to the appropriate authorities.
d. Each adult Passenger undertakes and agrees to supervise at all times any accompanying minors to ensure compliance with the provisions of this Section.
e. Operator may also change destinations, alter or cancel any activities of, deny service of alcohol to, search the property or baggage of any Passenger, disembark or refuse to embark the Passenger and/or any Passenger responsible for any minor Passenger, or restrain any Passenger at any time, without liability, at the risk and expense of the Passenger, when in the sole opinion of Operator or Captain the Passenger's conduct or presence, or that of any minor for whom the Passenger is responsible, is believed to present a possible danger, security risk or be detrimental to himself or the health, welfare, comfort or enjoyment of others, or is in violation of any provision of this Agreement.
f. Passenger, or if a minor, his parent or guardian, shall be liable for and indemnify Operator, Operator, and the Vessel from any civil liability, fines, penalties, costs or expenses incurred by or imposed on the Vessel, the Operator or Operator arising from or related to Passenger's conduct or failure to comply with any provisions of this Section 8, including but not limited to: (i) any purchases by or credit extended to the Passenger; (ii) requirements relating to immigration, customs or excise; or (iii) any personal injury, death or damage to persons or property caused directly or indirectly, in whole or in part, by any willful or negligent act or omission on the part of the Passenger.
g. Operator shall not be required to refund any portion of the Cruise or Sightseeing Tour Fare paid by any Passenger who fails for any reason to be onboard the Vessel by the specified time of departure, and shall not be responsible for lodging, meals, transportation or other expenses incurred by Passenger as a result thereof. Operator shall have no obligation to any Passenger to deviate from any scheduled sailing or destination.
h. Operator may refuse to transport any Passenger, and may remove any Passenger from the Vessel at any time, for any of the following reasons: (i) whenever such action is necessary to comply with any government regulations, directives or instructions; (ii) when a Passenger refuses to permit search of his person or property for explosives, weapons, dangerous materials or other stolen, illegal or prohibited items; (iii) when a Passenger refuses upon request to produce positive identification; or (iv) for failure to comply with Operator's rules and procedures.
i. In the interests of safety and security, Passengers and their baggage may be subject to inspection or monitoring with or without the Passenger's consent or knowledge.
j. If Operator exercises its rights under this Section, Passenger shall have no claim against Operator whatsoever and Operator shall have no liability for refund, compensation loss or damages of Passenger, including but not limited to any expenses incurred by Passenger for accommodations or repatriation.
11. FORUM SELECTION CLAUSE FOR ALL LAWSUITS; CLASS ACTION WAIVER:
a. EXCEPT AS PROVIDED WITH REGARD TO CLAIMS OTHER THAN FOR PERSONAL INJURY, ILLNESS OR DEATH OF A PASSENGER , IT IS AGREED BY AND BETWEEN PASSENGER AND OPERATOR THAT ALL DISPUTES AND MATTERS WHATSOEVER ARISING UNDER, IN CONNECTION WITH OR INCIDENT TO THIS AGREEMENT, PASSENGER'S CRUISE OR SIGHTSEEING TOUR, SHALL BE LITIGATED, IF AT ALL, IN LEE COUNTY, FLORIDA, U.S.A., (OR AS TO THOSE LAWSUITS TO WHICH THE FEDERAL COURTS OF THE UNITED STATES LACK SUBJECT MATTER JURISDICTION, BEFORE A COURT LOCATED IN LEE COUNTY, FLORIDA, U.S.A.) TO THE EXCLUSION OF THE COURTS OF ANY OTHER STATE, TERRITORY OR COUNTRY. PASSENGER HEREBY CONSENTS TO JURISDICTION AND WAIVES ANY VENUE OR OTHER OBJECTION THAT HE MAY HAVE TO ANY SUCH ACTION OR PROCEEDING BEING BROUGHT IN THE APPLICABLE COURT LOCATED IN LEE COUNTY, FLORIDA.
b. CLASS ACTION RELIEF WAIVER. PASSENGER HEREBY AGREES THAT EXCEPT AS PROVIDED IN THE LAST SENTENCE OF THIS PARAGRAPH, PASSENGER MAY BRING CLAIMS AGAINST OPERATOR ONLY IN PASSENGER'S INDIVIDUAL CAPACITY.
EVEN IF THE APPLICABLE LAW PROVIDES OTHERWISE, PASSENGER AGREES THAT ANY ARBITRATION OR LAWSUIT AGAINST OPERATOR, VESSEL OR TRANSPORT WHATSOEVER SHALL BE LITIGATED BY PASSENGER INDIVIDUALLY AND NOT AS A MEMBER OF ANY CLASS OR AS PART OF A CLASS OR REPRESENTATIVE ACTION, AND PASSENGER EXPRESSLY AGREES TO WAIVE ANY LAW ENTITLING PASSENGER TO PARTICIPATE IN A CLASS ACTION. IF YOUR CLAIM IS SUBJECT TO ARBITRATION AS PROVIDED IN SECTION 10 BELOW, THE ARBITRATOR SHALL HAVE NO AUTHORITY TO ARBITRATE CLAIMS ON A CLASS ACTION BASIS. YOU AGREE THAT THIS SECTION SHALL NOT BE SEVERABLE UNDER ANY CIRCUMSTANCES FROM THE ARBITRATION CLAUSE SET FORTH IN SECTION 10.b BELOW, AND IF FOR ANY REASON THIS CLASS ACTION WAIVER IS UNENFORCEABLE AS TO ANY PARTICULAR CLAIM, THEN AND ONLY THEN SUCH CLAIM SHALL NOT BE SUBJECT TO ARBITRATION.
12. NOTICE OF CLAIMS AND COMMENCEMENT OF SUIT OR ARBITRATION; SECURITY:
a. TIME LIMITS FOR PERSONAL INJURY/ILLNESS/DEATH CLAIMS: NO SUIT SHALL BE MAINTAINABLE AGAINST OPERATOR, THE VESSEL OR THE TRANSPORT FOR PERSONAL INJURY, ILLNESS OR DEATH OF ANY PASSENGER UNLESS WRITTEN NOTICE OF THE CLAIM, WITH FULL PARTICULARS, SHALL BE DELIVERED TO OPERATOR AT THE FOLLOWING ADDRESS, 2500 MAIN STREET, FORT MYERS BEACH, FL, 33931, WITHIN SIX (6) MONTHS FROM THE DATE OF THE INJURY, ILLNESS OR DEATH AND SUIT IS COMMENCED (FILED) WITHIN ONE (1) YEAR FROM THE DATE OF SUCH INJURY, ILLNESS OR DEATH AND PROCESS SERVED WITHIN 120 DAYS AFTER FILING, NOTWITHSTANDING ANY PROVISION OF LAW OF ANY STATE OR COUNTRY TO THE CONTRARY.
b. ARBITRATION OF ALL OTHER CLAIMS: ANY AND ALL OTHER DISPUTES, CLAIMS, OR CONTROVERSIES WHATSOEVER, EXCEPT FOR PERSONAL INJURY, ILLNESS OR DEATH OF A PASSENGER WHETHER BASED ON CONTRACT, TORT, STATUTORY, CONSTITUTIONAL OR OTHER LEGAL RIGHTS, INCLUDING BUT NOT LIMITED TO ALLEGED VIOLATION OF CIVIL RIGHTS, DISCRIMINATION, CONSUMER OR PRIVACY LAWS, OR FOR ANY LOSSES, DAMAGES OR EXPENSES, RELATING TO OR IN ANY WAY ARISING OUT OF OR CONNECTED WITH THIS CONTRACT OR PASSENGER'S CRUISE, NO MATTER HOW DESCRIBED, PLEADED OR STYLED, SHALL BE REFERRED TO AND RESOLVED EXCLUSIVELY BY BINDING ARBITRATION PURSUANT TO THE UNITED NATIONS CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS (NEW YORK 1958), 21 U.S.T. 2517, 330 U.N.T.S. 3, 1970 U.S.T. LEXIS 115, 9 U.S.C. §§ 202- 208 ('THE CONVENTION”) AND THE FEDERAL ARBITRATION ACT, 9 U.S.C. §§ 1, ET SEQ., (“FAA”) SOLELY IN FORT MYERS, FLORIDA, U.S.A. TO THE EXCLUSION OF ANY OTHER FORUM. THE ARBITRATION SHALL BE ADMINISTERED BY NATIONAL ARBITRATION AND MEDIATION (“NAM”) UNDER ITS COMPREHENSIVE DISPUTE RESOLUTION RULES AND PROCEDURES AND NAM’S FEE SCHEDULE IN EFFECT AT THE TIME OF THE PROCEDURE, EACH OF WHICH ARE DEEMED TO BE INCORPORATED HEREIN BY REFERENCE. NEITHER PARTY WILL HAVE THE RIGHT TO A JURY TRIAL NOR TO ENGAGE IN PRE-ARBITRATION DISCOVERY EXCEPT AS PROVIDED IN THE APPLICABLE ARBITRATION RULES AND HEREIN, OR OTHERWISE TO LITIGATE THE CLAIM IN ANY COURT. THE ARBITRATOR'S DECISION WILL BE FINAL AND BINDING. OTHER RIGHTS THAT PASSENGER OR OPERATOR WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION. AN AWARD RENDERED BY AN ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION UNDER THE CONVENTION OR FAA. PASSENGER AND OPERATOR FURTHER AGREE TO PERMIT THE TAKING OF A DEPOSITION UNDER OATH OF THE PASSENGER ASSERTING THE CLAIM, OR FOR WHOSE BENEFIT THE CLAIM IS ASSERTED, IN ANY SUCH ARBITRATION. THE ARBITRATOR AND NOT ANY FEDERAL, STATE OR LOCAL COURT OR AGENCY, SHALL HAVE EXCLUSIVE AUTHORITY TO RESOLVE ANY DISPUTE RELATING TO THE INTERPRETATION, APPLICABILITY, ENFORCEABILITY OR FORMATION OF THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO ANY CLAIM THAT ALL OR ANY PART OF THIS AGREEMENT IS VOID OR VOIDABLE. IN THE EVENT THIS PROVISION IS DEEMED UNENFORCEABLE BY AN ARBITRATOR OR COURT OF COMPETENT JURISDICTION FOR ANY REASON, THEN AND ONLY THEN THE PROVISIONS OF SECTION 9 ABOVE GOVERNING VENUE AND JURISDICTION SHALL EXCLUSIVELY APPLY TO ANY LAWSUIT INVOLVING CLAIMS DESCRIBED IN THIS SECTION.
c. TIME LIMITS FOR NON-INJURY/ILLNESS OR DEATH CLAIMS: NO PROCEEDING DESCRIBED MAY BE BROUGHT AGAINST OPERATOR, VESSEL OR TRANSPORT UNLESS WRITTEN NOTICE OF THE CLAIM, WITH FULL PARTICULARS, SHALL BE DELIVERED TO OPERATOR AT THE FOLLOWING ADDRESS, C/O SAIL SWFL CRUISES: 2500 MAIN STREET, FORT MYERS BEACH, FL, 33931, WITHIN THIRTY (30) DAYS AFTER TERMINATION OF THE CRUISE OR CRUISE TOUR (WHICHEVER IS LATER) TO WHICH THIS CONTRACT RELATES. IN NO EVENT SHALL ANY SUCH PROCEEDING DESCRIBED IN SECTION 10(b) BE MAINTAINABLE UNLESS SUCH PROCEEDING SHALL BE COMMENCED (FILED) WITHIN SIX (6) MONTHS AFTER THE TERMINATION OF THE CRUISE OR CRUISE TOUR (WHICHEVER IS LATER) TO WHICH THIS CONTRACT RELATES AND VALID NOTICE OR SERVICE OF SUCH PROCEEDING IS EFFECTED WITHIN SIXTY (60) DAYS AFTER FILING, NOTWITHSTANDING ANY PROVISION OF LAW OF ANY STATE OR COUNTRY TO THE CONTRARY.
d. IN THE EVENT OF AN IN REM PROCEEDING AGAINST THE VESSEL, PASSENGER HEREBY IRREVOCABLY AGREES THAT THE POSTING OF A LETTER OF UNDERTAKING FROM ANY OF OPERATOR'S INSURERS SHALL CONSTITUTE AN ADEQUATE AND APPROPRIATE FORM OF SECURITY FOR THE IMMEDIATE RELEASE OF THE VESSEL IN LIEU OF ARREST.
13. LIMITATIONS OF LIABILITY:
a. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ARTICLE 6 (e), OPERATOR SHALL NOT BE LIABLE FOR INJURY, DEATH, ILLNESS, DAMAGE, DELAY OR OTHER LOSS TO PERSON OR PROPERTY, OR ANY OTHER CLAIM BY ANY PASSENGER CAUSED BY ACT OF GOD, WAR, TERRORISM, CIVIL COMMOTION, LABOR TROUBLE, GOVERNMENT INTERFERENCE, PERILS OF THE SEA, FIRE, THEFTS OR ANY OTHER CAUSE BEYOND OPERATOR'S REASONABLE CONTROL, OR ANY ACT NOT SHOWN TO BE CAUSED BY OPERATOR'S NEGLIGENCE.
b. PASSENGER AGREES TO SOLELY ASSUME THE RISK OF INJURY, DEATH, ILLNESS OR OTHER LOSS, AND OPERATOR IS NOT RESPONSIBLE FOR PASSENGER'S USE OF ANY EQUIPMENT; OR FOR THE NEGLIGENCE OR WRONGDOING OF ANY INDEPENDENT CONTRACTORS, INCLUDING BUT NOT LIMITED TO PHOTOGRAPHERS OR ENTERTAINERS; OR FOR EVENTS TAKING PLACE OFF THE OPERATOR'S VESSELS, LAUNCHES OR TRANSPORTS, OR AS PART OF ANY SHORE EXCURSION, TOUR OR ACTIVITY.
c. OPERATOR HEREBY DISCLAIMS ALL LIABILITY TO THE PASSENGER FOR DAMAGES FOR EMOTIONAL DISTRESS, MENTAL SUFFERING OR PSYCHOLOGICAL INJURY OF ANY KIND UNDER ANY CIRCUMSTANCES, WHEN SUCH DAMAGES WERE NEITHER THE RESULT OF A PHYSICAL INJURY TO THE PASSENGER, NOR THE RESULT OF PASSENGER HAVING BEEN AT ACTUAL RISK OF PHYSICAL INJURY, NOR WERE INTENTIONALLY INFLICTED BY THE OPERATOR. WITHOUT LIMITING THE PRECEDING SENTENCE, IN NO EVENT WILL OPERATOR BE LIABLE TO PASSENGER FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES.
d. AS TO ALL OTHER CRUISES NOT DESCRIBED ABOVE, ALL THE RESTRICTIONS, EXEMPTIONS FROM, AND LIMITATIONS OF LIABILITY PROVIDED IN, OR AUTHORIZED BY THE LAWS OF THE UNITED STATES SHALL APPLY, INCLUDING BUT NOT LIMITED TO, TITLE 46 OF THE UNITED STATES CODE §§ 30501 THROUGH 30509, AND 30511. EXCEPT AS OTHERWISE SET FORTH, THIS CONTRACT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE GENERAL MARITIME LAW OF THE UNITED STATES OF AMERICA.
14. FITNESS TO TRAVEL; DENIAL OF BOARDING; MINORS:
a. Passenger warrants that he and those traveling with him are fit for travel and that such travel will not endanger themselves or others.
b. Minors - Any Guest under the age of 18 shall be considered a minor and must travel with a parent or Legal Guardian or such other person as may be permitted by Operator's policies.
c. Minimum Age. No Guest under the age of 21 will consume any alcoholic beverages while on board the Vessel. Operator reserves the right to request proof of age at any time and Passenger's age on the date of sailing determines his or her status for the entire cruise.
d. Pregnancy and Infants - Any Passenger who will enter the 24th week of pregnancy by the beginning of, or at any time during their Cruise or Sightseeing Tour agrees not to book the cruise or board the Vessel under any circumstances. No infants under a specific age (2 months for most cruises) shall be booked on a Cruise or Sightseeing Tour, nor brought onboard the Vessel by any Passenger under any circumstances.
e. Special Needs. Any Passenger with mobility, communication or other impairments, or other special or medical needs that may require medical care or special accommodations before or during the Cruise or Sightseeing Tour, including but not limited to the use of any service animal, must notify the Operator of any such condition at the time of booking. Passenger agrees to accept responsibility and reimburse Operator for any loss, damage or expense whatsoever related to the presence of any service animal brought on board the Vessel. Passengers acknowledge and understand that certain safety requirements and/or applicable regulations involving operation of the Vessel may restrict access to facilities or activities for persons with mobility, communication or other impairments or special needs. Passengers requiring the use of a wheelchair must provide their own wheelchair (that must be of a size and type that can be accommodated on the Vessel).
f. Operator shall have the right to deny boarding for violations of any of the policies set forth in this Section 12. If Operator exercises its rights under this Section 12, Passenger shall have no claim against Operator whatsoever and Operator shall have no liability for refund, compensation loss or damages of Passenger, including but not limited to any expenses incurred by Passenger.
g. Recreational activities. Although we keep a sharp lookout at all times while underway, anchored and docked, we do not have a lifeguard on duty. Children must be supervised by a parent or legal guardian at all times while in the water, ashore for an excursion, and aboard the vessel, whether underway, anchored, or made fast to the shore in any way.
15. USE OF PHOTOS, VIDEOS OR RECORDINGS:
a. Guest hereby grants to Operator/Operator the exclusive right throughout the universe and in perpetuity to include photographic, video, audio and other visual or audio portrayals of Passenger taken during or in connection with the Cruise or Sightseeing Tour (including any images, likenesses or voices) in any medium of any nature whatsoever (including the right to edit, combine with other materials or create any type of derivative thereof) for the purpose of trade, advertising, sales, marketing, website use, publicity, promotional, training or otherwise, without compensation to the Guest. Such grant shall include the unrestricted right to copy, revise, distribute, display and sell photographs, images, films, tapes, drawings or recordings in any type of media (including but not limited to the Internet). Guest hereby agrees that all rights, title and interest therein (including all worldwide copyrights therein) shall be Operator's sole property, free from any claims by Passenger or any person deriving any rights or interest from Passenger.
b. Guest hereby agrees that any recording (whether audio or video or otherwise) or photograph of Guest, other guests, Captain, crew or third parties onboard the Vessel or depicting the Vessel, its design, equipment or otherwise shall not be used for any commercial purpose, in any media broadcast or for any other nonprivate use without the express written consent of Operator. The Operator shall be entitled to take any reasonable measure to enforce this provision.
16. YOUR TRAVEL AGENT:
Passenger acknowledges and confirms that any travel agent utilized by Passenger in connection with the issuance of this Contract is, for all purposes, Passenger's agent and Operator shall not be liable for any representation made by said travel agent. Passenger shall remain liable at all times to Operator for the price of passage. Passenger understands and agrees that receipt of this Contract or any other information or notices by Passenger's travel agent shall be deemed receipt by the Passenger as of the date of receipt by the agent. Passenger acknowledges that Operator is not responsible for the financial condition or integrity of any travel agent.
Any provision of this Agreement that is determined in any jurisdiction to be unenforceable for any reason shall be deemed severed from this Agreement in that jurisdiction only and all remaining provisions shall remain in full force and effect.
18. TRANSFERS AND ASSIGNMENTS:
This Contract may not be assigned, sold or otherwise transferred by the Passenger. Among other things, this means that the Passenger cannot sell or transfer this Contract to someone else, and Operator shall not be liable to the Passenger or any other person in possession of a Contract for honoring or refunding such Contract when presented by such other person. The Operator may assign, convey or transfer its rights in this Agreement to any parent, subsidiary or affiliate of the Operator who is scheduled to operate the Vessel at the time of the Cruise.