Membership Terms and Conditions
PACIFIC BOATING GROUP
MEMBERSHIP TERMS AND CONDITIONS AND CODE OF CONDUCT (THE RULES)
Administration Fee means the Administration Fee charged by PBG from time to time to Members commencing with the Administration Fee initially specified in the Membership Application Form.
Advanced Booked means a booking made for a PBG boat more than fourteen (14) days in advance of the cruise date
Allocated Day is any day during the term of a Membership Year, which has been booked by the Member for use of the PBG Boats and where such booking has been confirmed by PBG.
Claim means in relation to PBG, any claim, action, proceeding or demand made against any entity forming part, however arising and whether present or future, fixed or unascertained, actual or contingent.
Cost means any loss, expense, damage, compensation, or outgoing suffered or incurred by PBG.
Credit Rights mean those rights set out in clause 6 of the Rules and the Rules in general.
Credit System means the system of credit points operated by PBG, whereby each Member is credited with such Member Credits (or points) per year, attributable to the Class of Membership applicable to the Member, which the Member may then use to book cruises on the PBG Boats in accordance with the Rules.
Force Majeure Event means any major and/or serious cause, happening, event or thing, that is beyond the reasonable control of PBG including but not limited to:
(i) power failure, internet service provider failure, industrial action, civil unrest, adverse weather event, fire, flood, storm, earthquake, acts of terrorism, acts of war, epidemics and/or pandemics;
(ii) any action, decree, order or ruling by any Government Agency in relation the any of the matters referred to in the preceding paragraph; or
(iii) any cause, happening, event or thing affecting a Party’s supply chain, including but not limited to such causes, happenings, events or things that arose because of any of the matters referred to in the preceding two paragraphs;
Full Membership is as defined in clause 4 of the Rules.
Government Agency means any government or government department, a governmental, semi-governmental or judicial person and any other person, company or entity recognised at law (whether autonomous or not), with authority and/or powers relating to the administration or enforcement of any law.
Interest Rate means the rate proscribed under the Uniform Civil Procedure Rules NSW and/or the Civil Procedure Act NSW from time to time on judgment debts.
Joint Members Category means where two or more persons enter into a Membership Agreement in respect of a particular Membership class as contemplated by the Rules.
Member means a person who has entered into a Membership Agreement with PBG, and whose Membership Term (or Renewed Term) remains current and has not expired or been cancelled or terminated.
Member Credits means those Member Credits provided to the Member as contemplated by clause 6 of the Rules.
Membership is defined in clause 2 of the Rules.
Membership Agreement means the agreement contemplated by clause 2 of the Rules.
Membership Application Form means the form used by PBG from time to time for accepting Members and entering into of a Membership Agreements.
Membership Fee means the Membership Fee charged by PBG from time to time to Members and commencing with the Membership Fee initially specified in the Membership Application Form.
Membership year is as defined in clause 6 of the Rules.
Mid-Week Membership is as defined in clause 4 of the Rules.
PBG means Pacific Boating Group Pty Limited A.C.N. 117 497 364.
PBG Boat and/or PBG Boats means those vessels owned and operated by PBG from time to time (including any vessels in respect of which PBG has entered into financing arrangements), which are available for booking and use by a Member.
PBG Business Day means those days contemplated by clause 18.
Renewed Term means the renewed or extended term of membership as contemplated by clause 3 of the Rules.
Term means the date commencing from the date of acceptance of Membership, and ending on the date as contemplated in clause 3 of the Rules.
The Rules means these Membership Terms and Conditions and Code of Conduct as amended from time to time.
2. MEMBERSHIP AGREEMENT AND ARRANGEMENTS
2.1 Membership is constituted by an agreement between the Member and PBG which is entered into between the Member and PBG upon the Member completing a Membership Application Form, and the payment by the Member of moneys then due as set out in that Membership Application Form, and acceptance by PBG accepting the Member as a Member (“Membership Agreement”).
2.2 When deciding whether to approve or cancel a Membership, PBG reserves the right to require a Member or proposed Member to provide an up to date criminal history check from all relevant State and Territories and the Commonwealth of Australia. PBG reserves the right to refuse and/or cancel any Membership after considering the information provided concerning a Member or proposed Member’s criminal history.
2.3 The Membership Agreement contains the acknowledgements, agreements, rights and obligations set out in the Rules, in respect of which the Member is respectively bound as the context permits.
2.4 A Member will be entitled to the use of the PBG Boats in accordance with the conditions set out in the Rules upon the date of PBG determining the Member’s successful completion of the practical familiarisation and handling course of the PBG Boats.
2.5 The Member acknowledges and agrees that no person without authorisation of PBG is permitted to drive the PBG Boats at any time and that the Member will ensure that this obligation is observed at all times whilst the Member is in control of the PBG Boats as a consequence of having made a booking.
2.6 Membership rights under a Membership Agreement are personal to a Member and cannot be assigned, transferred or otherwise disposed or alienated.
2.7 PBG may in their absolute discretion assign any rights under any agreement with the Member.
2.8 Where two or more people join as Members, for example under a Joint Members Category, their Membership Agreement and their respective obligations shall be joint and several.
2.9 Where a Member is a corporation (the Corporate Member), an individual representing that Corporate Member is required to sign a Membership Application on behalf of, and as agent of the Corporate Member (the Agent or in the case of more than one agent the Agents). Both the Corporate Member and each of the Agents are jointly and severally bound by the Rules and in the case of an obligation of each of the Agents, as though a reference in these Rules to Member was and included a reference to each of the Agents. Without limiting the foregoing, each of the Agents are also additionally bound as the person responsible at all times for the use of the Boats as contemplated by these Rules.
2.10 A Corporate Member may nominate with the approval of the PBG, additional persons to be their Agent and it is a requirement that all such additional persons sign such documents as may be requested by them prior to being permitted as an additional Agent.
2.11 For the avoidance of doubt, although the Corporate Member and the Agent are jointly and severally bound by the Rules, the membership shall be taken as a single membership for the joint benefit of the Corporate Member and the Agent to share as between themselves as they may agree.
2.12 The Member acknowledges and agrees that:
(a) PBG owns the PBG Boats or has entered into financing arrangements in respect of the PBG Boats.
(b) Any rights of the Member are acknowledged as being subject and subservient to the rights of PBG or its financiers in respect of the ownership and financial arrangements connected with the PBG Boats.
(c) On becoming a Member, the Member will be granted Credit Rights, which rights are as set out in the Rules, entitle the Member to use the PBG Boats subject to pre booking and availability.
(d) PBG will collect the monies owed by Members in respect of their Membership and will be entitled to retain those monies in consideration of agreeing to provide PBG Boats to Members (and all expenses incidental to same) in accordance with and as contemplated by the Rules.
3. TERM OF MEMBERSHIP
3.1 The initial Term of a Membership shall be for a minimum of 12 months or such longer period as set out in the Membership Application Form.
3.2 The Membership is continuing, and if a Member does not provide the relevant notice indicating their decision to cease their Membership as set out in this clause, the initial Term will automatically be renewed for a further term (the Renewed Term) being for an indefinite period and on the same basis as existed during that prior initial Term subject to any rate increases in relation to Membership Fees, Administration Fees or other fees or charges under any applicable Membership Agreement, or changes to Credit Rights or PBG policies or procedures (or anything else that is relevant to a Membership) that PBG may have instituted and as may have existed at the time of any relevant Renewed Term commencing.
3.3 A Member may indicate to PBG they wish to cease their Membership at the expiry of the initial Term by providing notice in writing to PBG indicating their decision to cease their Membership at the conclusion of the initial Term by no earlier than four (4) full calendar months before the expiry of the initial Term, and no later than three (3) full calendar months before the expiry of the initial Term, whereupon their Membership Agreement will come to an end at the expiry of the initial Term.
3.4 The Renewed Term may be terminated at any time by:
(i) the Member giving 3 full calendar months’ notice in writing to PBG of its intention to terminate the Membership and their Membership Agreement, where upon on expiry of that 3 full calendar month notice period, and subject to clause 3.5, their Membership Agreement will be at an end; or
(ii) PBG giving 3 full calendar months’ notice in writing to the Member of its intention to terminate the Membership and their Membership Agreement, where upon on expiry of that 3 full calendar month notice period, and subject to clause 3.5, their Membership Agreement will be at an end.
3.5 Despite a Membership Agreement being at an end whether as a result of expiry of the initial Term, or termination of the Renewed Term by the Member, or a termination, cancellation or other bringing to an end of a Membership and/or a Membership Agreement as contemplated by these Rules or otherwise, any accrued rights of PBG shall survive that termination, cancellation or bringing to an end of a Membership Agreement and PBG may enforce those rights at any time thereafter in any manner in accordance with law.
4. CATEGORIES OF MEMBERSHIP
4.1 The Member will specify in the Membership Application Form a specific category of Membership. Each category of Membership will be determined by the Class of PBG Boat and will specify whether the Member has access to the PBG Boats limited to the five
(5) business days of the week, those being Monday to Friday inclusive, or full access across the seven (7) weekdays, being Sunday through Saturday, or such other use arrangements as may relevantly then be in place.
4.2 The Classes within PBG include:
(i) Pacific 44 Class.
(ii) Pacific 52 Class
(iii) Such other classes as may relevantly be available at the time of completing a Membership Application Form
4.3 A Membership that gives a Member access to the PBG Boats during the five (5) business days of the week, Monday to Friday inclusive (excluding Public Holidays), will be known as a Mid Week Membership.
4.4 A Membership that gives a Member access to the PBG Boats during the seven (7) weekdays, Sunday to Saturday inclusive, will be known as a Full Membership.
4.5 A Member that holds a Mid Week Membership will be able to pre book the PBG Boats during weekdays only, Monday to Friday inclusive, excluding Public Holidays.
4.6 A Member that holds a Full Membership with PBG will be able to pre book the PBG Boats on any weekday.
4.7 A Member may take PBG Boats out from alternative PBG locations.
4.8 PBG in their sole discretion reserve the right to change the PBG Boats that are operating within each Membership Class, from time to time, as required, or may alter, vary, delete or add other Membership Classes, and advise the Member of same.
4.9 All Members must be over the age of Thirty (30) years at the time of joining.
5. MEMBERSHIP FEES AND OTHER PAYMENTS
5.1 The Member acknowledges and agrees that it shall pay the Administration Fee and the relevant Membership Fee at the rates specified on the Membership Application Form from time to time, during the initial Term, and during any Renewed Term, for the rates then applicable to the relevant class of Membership which the Member has rights during that Renewed Term.
5.2 The Member is obliged to pay the Membership Fee, Administration Fee and all other monies applicable to the Membership as contemplated by the Rules at the agreed intervals as outlined on the Membership Application Form or the Rules.
5.3 Any Membership Fee, Administration Fees or other monies payable by the member by way of instalment (Membership instalments) are to be paid in advance and will fall due on the first calendar day of the calendar month. Where the Member provides a direct debit authority as against its bank account or credit card, the Member is deemed to have authorised PBG to deduct the necessary Membership instalment as against that bank account or credit card.
5.4 Each and every time the Member’s Membership instalment payments are not paid at the intervals agreed as outlined on the Membership Application Form or when the Member’s credit card or bank account does not result in payment of the Membership instalment, an administration charge of $100 will become payable and interest at the rate equivalent to the Interest Rate will be applied to the outstanding instalment or instalments, unless PBG in its absolute discretion elects to waive that administration charge or charging of interest.
5.5 Whilst there are outstanding monies owed by a Member as contemplated by the Rules in connection with the Member’s Membership Agreement, a Member’s Credit Rights shall cease until such time as all obligations of the Member are met. Nothing in this sub clause limits the right of PBG to terminate a Membership and claim the balance of any Membership Fees, Administration Fees or other monies then owing for the remaining Member’s Term in the case of non payment of monies due and owing by the Member under this clause or the Rules.
6. CREDIT RIGHTS AND CREDIT SYSTEM
6.1 Each Membership commences on the date that their membership application form is submitted and accepted by PBG with the Membership Initial Term commencing on the date as outlined on your Membership Application Form.
6.2 The commencement of each Membership quarter will be aligned with the seasons. That being Autumn (March/April/ May), Winter (June, July, August), Spring (September, October, November) and Summer (December, January, February).
6.3 PBG operates within a Credit System. Each Member who joined after 1st September 2020 is entitled to Member Credits and is allocated 360 Member Credits per year (or such other amount as may be determined by PBG from time to time).
6.4 Each Member who joined prior to 1st September 2020 is entitled to Member Credits and is allocated 360 Member Credits per year (or such other amount as may be determined by PBG from time to time). This allocation of 360 Credits will be made up of 300 new credits and 60 rollover credits. If the Member does not have sufficient rollover Credits PBG will provide extra credits to bring the annual total to 360.
6.5 Member Credits are to be used to book cruises on the PBG Boats and as such Member Credits refer to rights of Members to book cruises during a Membership Year.
6.6 A Member must not use more than 25% of available Member Credits for a Membership Year during any given quarter.
6.7 Bookings for the PBG Boats will be accepted on a ‘first in, first served’ basis in accordance with the Rules.
6.8 Normal Cruises commence at 10am and finish at 8am on the following day. These cruises will be available on all days of the week. Fifteen (15) Member Credits will be debited to a Member’s Credit Statement for each such Cruise.
6.9 Members who have not completed the required night navigation course and required number of cruises will be required to return the boat to the marina prior to the time navigation lights are required to be burning on the day of the cruise. These times will be determined by Pacific Boating on the day of the cruise and will take into consideration the daily weather, visibility and sunset times on the day. Cruise evenings are available only with the express permission and consent of PBG and PBG may refuse a member access to a cruise evening at PBG’s discretion.
6.10 Cruises booked more than fourteen (14) days in advance will be considered an Advance Booked Cruise.
6.11 All Members are limited to twelve (12) Advanced Booked Weekday cruises per year to be shared out to three (3) Advanced Weekday cruises per quarter.
6.12 Full seven (7) Day Members are further entitled to advance book (8) Advanced Booked Weekend Day cruises per year shared out to two (2) Advanced Weekend Day cruises per quarter on Weekend Days or Public Holidays.
6.13 In the event that the Member does not arrive to take out the PBG Boat on an allocated day, the Credits for that day will be forfeited.
6.14 Should the Member cancel a cruise less than forty-eight (48) hours prior to the cruise time, for any reason, the Credits for that cruise may be forfeited at the sole discretion of PBG.
6.15 Members are entitled to book up to three (3) consecutive days.
6.16 PBG, in its sole discretion, will decide the classification of a foul weather day on the allocated day.
6.17 If the Member is unable to use an allocated day due to foul weather, the Member will be permitted to defer these days to another date without a loss of Member Credits. It will be the Member’s sole responsibility to notify PBG and re-book dates cancelled due to foul weather.
6.18 Should the Member return the PBG Boats earlier than anticipated due to foul weather it will be at the sole discretion of PBG whether a full Credits charge will apply for that cruise.
7.1 The Member acknowledges and agrees that:
(a) All PBG Boats are fitted with an accurate fuel usage monitoring system. Prior to each Member’s cruise PBG will take a reading of the fuel remaining in the boats fuel tanks and reset the fuel used meter to zero. Upon return of the PBG Boat by the Member, PBG will take a reading of the fuel remaining in the fuel tanks and take a reading from the fuel used meter. The reading on the fuel used meter, plus any fuel used by the running of the generator on the PBG boat during the Member’s cruise, will be recorded as the fuel used during the Member’s cruise. PBG will charge the cost of the fuel used during the Member’s cruise to the Member’s credit card details on file.
(b) Fuel will be charged to the Member at the price indicated on the bowser at the time of refueling plus a 2% service charge.
(c) The Member must ensure that all persons boarding the PBG Boats wear appropriate footwear. Only non-marking soled shoes or bare feet are acceptable.
(d) The Member is liable in respect of any Cost suffered or incurred by PBG or any other person in respect of the usage by a Member of the PBG Boats.
(e) All personal effects must be removed by the Member from a PBG Boat at the end of the Member’s cruise. PBG will not be held responsible for the safe keeping of personal effects that are left on PBG Boats and will not be liable for any Cost suffered or incurred by a Member or their guests in relation to same.
(f) The Member will, at all times ensure that they are responsible for the PBG Boat, and remain under the .02 prescribed blood alcohol limit (or such other limit required by law), and comply with all Maritime Laws (being any law in connection with the operation or conduct of the PBG Boat).
(g) Under no circumstances is smoking permitted on board a PBG boat at any time. A breach of this clause will attract a $1000 fee payable by the Member and extra cleaning charges will be payable by the Member.
(h) Under no circumstances are pets permitted on board a PBG Boat at any time.
(i) Normal office hours for the PBG are from 8.30am to 5.30pm 7 days per week except for Christmas Day and Good Friday when the office is closed
(j) There will be no boat movements on to Good Friday, and Christmas Day each year.
7.2 Each of PBG and the Member acknowledge and agree that to the maximum extent permitted by law:
(a) the provisions of the Electronic Transactions Act 2000 NSW (the ETA) are intended to apply to all “transactions” as defined in the ETA (transactions) between PBG and the Member; and
(b) without limiting the foregoing, they may deal with each other via the use of “electronic communications” as defined in the ETA (electronic communications) and may enter into transactions with each other, through the use of electronic communications.
8.1 Each Member is responsible for returning the PBG Boats in a clean condition and each Member must remove all personal rubbish.
8.2 Members returning PBG Boats in an unreasonable condition, as solely determined by PBG, will be charged a minimum fee (as determined by PBG from time to time but estimated at $500) for removal of rubbish and for the cost of excess detailing, however that fee may be increased by PBG to reflect the actual Cost of cleaning the PBG Boat.
8.3 It is the sole responsibility of the Member to ensure that all guests are aware of the correct operation of the toilet facility and no foreign objects or items of personal hygiene are disposed of in the toilet facility. The Member will be charged for any additional Costs incurred (as determined by PBG from time to time but estimated at $500) as a result of a blocked toilet or excess cleaning resulting there from.
9.1 Each Member is required to notify PBG of:
(a) the time they intend to commence their cruise, and the time they intend to return from their cruise; and
(b) the general area that they intend to cruise.
(c) The number of people that will be on the boat at all times during the cruise
9.2 The Member acknowledges and agrees with PBG that:
(a) Each Member is required to return the PBG Boat to the marina operated by PBG by the normal finish times as contemplated by Clauses 6 and 7. If a return time outside the normal PBG office hours has been arranged with PBG, the Member is responsible to ensure that the PBG Boat is securely moored in the area that has been nominated by PBG, all 12 volt electrical systems are turned off, all protective covers are affixed in the normal manner, the PBG Boat is securely locked, the 220 volt shore power is connected and working correctly, all rubbish is removed from the boat and the keys are placed in a nominated location.
(b) Without limiting any other clause of the Rules, if the PBG Boat is returned outside of office hours the Member is deemed to be fully responsible for the PBG Boat until it is returned to PBG during the office hours of a business day. That is, the PBG Boat remains in the custody and care of the Member until office hours of a PBG business day and any loss damage or other Cost suffered or incurred by PBG or PBG is at the Member’s risk and is one in respect of which the Member is liable to PBG.
(c) The Member is not permitted to take PBG Boats in water with depth of less than 2.0 metres at any time unless in case of an emergency.
(d) The Member is not permitted to take PBG Boats from Pittwater past an imaginary line between Box Head and the Eastern side of Barrenjoey headland, or from the Sydney Harbour past an imaginary line between North Head and South Head.
(e) The Member is not permitted to take the PBG Boats past an imaginary line between Little Box Head and Mt Ettalong Lookout or south of an imaginary line between Heron Cove Marina and Bayview Park at any time.
(f) The Member is not permitted to take the PBG boats past an imaginary line between Bar Point and Fishermans Point on The Hawkesbury
(g) The Member is not permitted to take the PBG Boats West past an imaginary line between Cabarita Point and Looking Glass Point or West of Riverview College wharf on Lane Cove River at any time.
(h) The Member is not permitted to take the PBG Boats South of The Iron Cove Bridge at any time.
(i) The Member is not permitted to take the PBG Boats West of The Roseville Bridge at any time.
9.3 The Member acknowledges that:
(a) As the Master of the PBG Boats they are responsible for the safe operation of the PBG Boats and the safety of all guests at all times;
(b) They will maintain up to date knowledge of the SMS manual on board each PBG Boat;
(c) Will maintain up to date knowledge of rules of the waterway;
(d) They will ensure they obey all marine laws, rules and regulations at all times and will navigate the PBG Boats:
i. Whilst maintaining a proper look out at all times
ii. Driving slowly in adverse weather conditions and where visibility is restricted;
iii. not exceeding 8 knots between sunset and sunrise;
iv. Slowing down on busy waterways and obeying all speed limits and restrictions at all times;
(e) They will ensure that all persons on a PBG Boat who are not confident swimmers will wear a lifejacket at all times, and will wear a lifejacket when required pursuant to any marine laws, rules and regulations, or of directed to do so by the Member;
(f) Brief the guests on the safe operation of the PBG Boats and location of safety gear; and
(g) Report all incidents that occurred during the cruise to PBG.
10. MEMBER RESPONSIBLE FOR USE OF BOATS
10.1 When the PBG Boats are in the custody and/or care of the Member, the Member is liable for and responsible for Costs suffered or incurred by PBG or Claims made against PBG arising from the use of PBG Boat by the Member. It is agreed that custody and/or care by the Member of the Boat commences at the time the PBG Boat is handed over to the Member by the PBG staff and does not conclude until the Member hands back the PBG Boat to the PBG staff on a PBG business day. Without limiting the foregoing, the Member is responsible for and agrees the Member will bear, and reimburse to PBG the Cost to PBG of:
(a) rectifying any boat or boat machinery damage caused to the PBG Boats as a result of use by the Member that is not attributable to normal wear and tear;
(b) repairs arising from or connected with the Member’s use of the PBG Boats (including but not limited to the Member or passengers on board the PBG Boats whilst the boat is in the custody and/or care of the Member on an allocated day);
(c) repairing any damage to the PBG Boats and to third party property arising as a result of a breach of any of the Rules or any law;
(d) meeting or satisfying any Claim of any person arising from or connected with the Member’s use of the PBG Boats (including but not limited to the Member or passengers on board the PBG Boats whilst the boat is in the custody and/or care of the Member on an allocated day).
10.2 The Costs referred to in this clause is to be determined by PBG, or if applicable, PBG’s insurer or independent assessors in their sole discretion and includes (but is not limited to):
(a) The cost of repairs to the PBG Boats or the market value of the PBG Boats at the time of loss, whichever is the lesser;
(b) Appraisal fees;
(c) Towing, storage and recovery costs;
(d) A 15% Administration Fee by PBG; and
(e) A per day cost for downtime of the PBG Boats determined at the sole discretion of PBG.
11. CLAIMS AND MEMBER INDEMNITY
11.1 Where the use of the PBG Boats by the Member results in any Claim, or there is an accident, damage, loss or Cost in relation to the PBG Boats, the Member, in addition to any obligation imposed on them by law the Member:
(a) Must promptly report such incidents in writing to PBG and the relevant authorities within twenty-four (24) hours after the incident occurs;
(b) Must not, without the PBG’s written consent, make or give any offer, promise of payment, settlement, waiver, release, indemnity or admission of liability;
(c) Must permit PBG or its insurer at its or their own cost to bring, defend, enforce or settle any legal proceedings against a third party; and/or
(d) Must complete and furnish PBG, within a reasonable time, any statements, information or assistance which they may request and if required, appear in Court to give evidence or provide such affidavit evidence or other evidence as may be required by PBG.
11.2 The Member agrees to indemnify and indemnifies PBG for all Cost suffered or incurred by PBG, arising directly or indirectly as a result of:
(a) the use by the Member of PBG Boats or the Membership or any matter contemplated by the Rules;
(b) any person making any Claim against PBG or PBG in respect of, or connection with the use by the Member of PBG Boats or the Membership or any matter contemplated by the Rules;
(c) Without limiting the foregoing, a breach by the Member of its obligations in connection with these Rules generally, including but not limited to a breach by the Member of clauses 10, 11 or 12 of the Rules; or
(d) Any failure by the Member to comply with or abide by any law or legal obligation in connection with the Member’s use of PBG Boats.
12.1 The PBG Boats may be insured by PBG along with third party public liability cover for up to Twenty (20) million Australian Dollars, or such other amount, and for such cover, as PBG deems necessary from time to time.
12.2 At all times it will be at PBG’s sole discretion as to:
(i) the level or insurance cover, the type of insurance policies, and the insurer with whom PBG elects to take out such policies of insurance;
(ii) whether or not to take out a policy of insurance, and the amount of any claims excess applicable to PBG in respect of any claims it may make under any policy of insurance it may have taken out;or
(iii) whether or not to make a claim under any policy of insurance PBG may have in its favour (including but not limited to for damage to the PBG Boats or other risks the subject of any such insurance policy).
12.3 The Member is responsible for payment of the PBG insurance policy excess (initially Twenty Five Thousand Dollars ($25,000) per cruise but may be such other amount as may apply to PBG or PBG from time to time under its insurance policies) if an insurance claim is lodged for any Cost or Claim affecting PBG in connection with the use of PBG Boat by the Member or in the event of any third party claim against PBG so connected with the Member’s use of a PBG Boat.
12.4 The Member may reduce the insurance policy excess for each cruise from $25,000 to $8,000 (or such other amount as may be notified to the Member by PBG) by agreeing to pay an insurance excess reduction fee as so notified by PBG at the beginning of each cruise and this in no way affects the discretion of PBG whether or not to make an insurance claim in respect of any such insurance policy. The Member acknowledges and agrees with PBG that despite having paid the excess reduction fee, the relevant excess will not be reduced where an insurance claim arises due to a breach by the Member of its obligations in connection with these Rules generally, or due to a failure by the Member to comply with or abide by any law or legal obligation in connection with the Member’s use of PBG Boats.
12.5 Any incident of significance (deemed to be a Cost to PBG greater than $1,000) which is not immediately reported by the Member to PBG will be deemed as damage deliberately or recklessly caused by the Member. Where this clause is deemed to apply, the action of the Member will constitute a breach of the Rules and it will be at the absolute discretion of PBG as to the action to be taken in relation to that breach.
12.6 Without limiting the generality of the foregoing the Member acknowledges and agrees with PBG that it will not do anything, or omit to do anything as the case may be, that would cause any provision of any insurance Policy taken out by PBG to be breached.
12.7 The Member acknowledges and agrees with PBG that the obligations of the Member pursuant to their Membership Agreement (including but not limited to those obligations under clause 10 and the indemnity given by the Member to PBG in clause 11) is in no way limited or its effect reduced because:
(i) an insurance policy has been taken out by PBG or is otherwise in place for the benefit of PBG;
(ii) PBG exercises its discretion referred to in clause 12.2; or
(iii) the Member may have elected to reduce the Policy excess, referred to in the foregoing sub clauses.
12.8 PBG will provide to the Member, on request (provided that request is made reasonably and with reasonable notice), details of the level of insurance cover in place in respect of the members use of the PBG Boats.
13. LIABILITY OF PBG
13.1 PBG gives no warranty express or implied as to any matter connected with PBG, the PBG Boats or the Rules, other than a non- excludable warranty it is required to give pursuant to the Competition and Consumer Act 2010 or any other statute in Australia. PBG do not purport by this clause (or anything else) to exclude, restrict or modify any non-excludable rights that the Member has under the Competition and Consumer Act 2010 or any other statute in Australia.
14. MEMBERSHIP CANCELLATION
14.1 A Member may not cancel its Membership or terminate their Membership Agreement where such cancellation or termination is purported to have effect prior to the expiry of the Term of that Membership, and subject to clause 3 of the Rules, a Member may only cancel its Membership or terminate their Membership Agreement in the manner contemplated by clause 3 of the Rules.
14.2 PBG may permanently cancel a Membership and terminate a Membership Agreement:
(a) if in their reasonable opinion the Member or its guests or invitees cause or are likely to cause willful damage, abuse or misuse of the PBG Boats or are likely to use the PBG Boats for illegal purposes;
(b) when monies owed to PBG under the Rules or otherwise are overdue in excess of thirty (30) days;
(c) where the member states that it is not intending to abide by the Rules, or advises PBG that it wishes to cancel its Membership otherwise than as permitted by the Rules; or
(d) as set out in clause 3 or as otherwise contemplated by the Rules.
14.3 In the event of cancellation of Membership by PBG :
(a) The Membership of the Member is at an end and the agreement between the Member and PBG is terminated (Termination);
(b) the Member must make full payment to PBG of all monies due and owing that have not been paid prior to the date of Termination;
(c) the Member must make full payment to PBG of all Membership Fees, Administration Fees or other monies owing for the balance of the Member’s Membership Term ;
(d) the Member will not be entitled to any refund, in part or full, of Membership Fees, Administration Fees or other monies paid to PBG prior to the date of Termination; and
(e) any accrued rights of PBG shall survive the Termination, or cancellation or ending of their Membership Agreement and PBG may enforce those rights against the Member at any time thereafter in any manner in accordance with law.
15. OPERATING PROCEDURES AND POLICY AMENDMENTS
15.1 The PBG operating procedures and policies may be amended, altered or changed by PBG at any time, at the sole discretion of PBG.
16. OPERATIONAL REQUIREMENTS
Boat Handling and Familiarisation with Boat Use
16.1 A Member must lodge a copy of their Boat Driver’s Licence with PBG and must demonstrate the ability to operate and manoeuvre the PBG Boats safely. If, in the opinion of PBG, the Member is not proficient in the handling and operation of the PBG Boats, PBG, at its sole discretion, may require the Member to undergo additional instruction on the PBG Boats. PBG may refuse the Member access to the PBG Boats until PBG is of the opinion that the Member is competent in the safe handling and operation of the PBG Boats.
16.2 Every Member will be required to undergo a minimum practical familiarisation and handling course during daylight hours on the PBG Boats.
16.3 The Daylight Hours Boat Handling Course will be conducted over a minimum period of two (2) x eight (8) hour lessons on the Pacific 44 Class and 52 Class vessels.
16.4 This Daylight Hours Boat Handling Course is a mandatory requirement of PBG and must be undertaken before the Member is permitted to be in sole command of the PBG Boats. This training is included in the Membership. If the Member wishes to use the PBG Boats after sunset, the Member must complete the PBG Night Operation Training Course. This training is included in the Membership.
16.5 If a Member wishes to complete the PBG Night Operation Training Course they must have successfully completed the Daylight Hours Boat Handling Course.
16.6 If a Member wishes to continue to cruise after sunset they must have successfully completed the PBG Night Operation Training Course plus successfully completed three daytime cruises.
16.7 Every Member will be required to undergo an annual review and update of their operational capabilities of PBG Boats. This review will be conducted by the PBG Training Officer and his sign off will be required before Members will be allowed to continue to book PBG Boats.
16.8 PBG may require annual reviews on instruction matters and Member competency, and the member agrees that it is in PBG’s discretion as to how this shall be conducted, and that PBG may determines whether or not the required level of competency has been maintained by the Member.
16.9 Fuel for all training is at the Member’s expense.
17. PAYMENT OF ACCOUNTS
17.1 The Member must pay PBG on demand:
(a) All charges specified on PBG Membership Application Form and/or as contemplated by these Rules;
(b) Monies payable to PBG by the Member arising out of the use of the PBG Boats by the Member or imposed on PBG or on the Member by any governmental or other competent authority (such as speeding or other infringements); and/or
(c) All monies for which the Member is liable to PBG in respect of a breach of the Rules or for Costs or Claims it has agreed to pay to or indemnify PBG as contemplated by the Rules.
17.2 A Member in breach of their Membership Agreement or the Rules is liable for any reasonable costs incurred by PBG as a result of the breach, including but not limited to debt collection costs and legal fees on a full indemnity basis.
17.3 PBG reserves the right to refuse payment by cheque.
17.4 Where a Member pays by credit card, PBG may add to that charge, such amount as is charged to PBG by any credit card merchant provider under the applicable credit card merchant facility as is referable to that credit card payment by the Member.
18. PBG BUSINESS DAYS
18.1 PBG will not open on Christmas Day and Good Friday. Subject to the Rules, any other day is a PBG Business Day.
18.2 As public holidays are charged at premium Credits, they appear on the online bookings calendar within the PBG website www.pacificboating.com.au, for the benefit of Members.
18.3 Members wishing to operate PBG Boats within their class on Boxing Day, New Year’s Eve and Australia Day must register their interest by the preceding 31st October. Depending upon demand, allocation of the PBG Boats will be undertaken by ballot.
18.4 Members wishing to take the PBG Boats out in the evening on New Year’s Eve or on New Year’s Day are required to book the PBG Boat for both the day and evening of the 31st December and the day of the 1st January.
19. REPORTING FAULTS
19.1 In the event that an item is damaged or fails to operate whilst the PBG Boats are with the Member, then the Member is required to notify PBG of the situation as soon as is reasonably possible, but in any event within twenty four (24) hours of the conclusion of the relevant cruise.
19.2 PBG Boats may be equipped with engine monitoring devices and black box reporting and tracking systems for the purposes of protecting the Member as well as, independently recording date, time and location of any incidents.
20. USE BETWEEN DUSK AND DAWN
20.1 Subject to the Member’s ongoing obligations under the Rules in respect of use of the PBG Boats the Member may use the PBG Boats between dusk and dawn if they have been endorsed by PBG for operation of the PBG Boats between dusk and dawn.
21. VESSEL OUT OF SERVICE
21.1 Subject to the PBG Boats being available a Member is entitled to use the PBG Boats available under the relevant category of Membership in accordance with the Rules. PBG reserves the right to add, change or provide suitable alternative PBG Boats from time to time and may also at any time withdraw any number of PBG Boats for any period(s) where the same are required for promotional activities, exhibitions or other activities or in connection with any repair, alteration or maintenance work.
21.2 In the event that a PBG Boat is taken out of service on a Member’s allocated day and the Member is unable to take the cruise, PBG shall:
(a) make a Member Credits adjustment without loss to the Member; or
(b) offer the Member a boat class transfer at no additional access Credits charge, subject to availability and at PBG’s sole discretion.
22.1 The Member acknowledges PBG collects personal and limited sensitive information to provide and sell services and to limit the risk of threat to life of individuals utilising the PBG Boats. Representatives of PBG collect information from Members wherever possible for the purposes of marketing and fulfilling contractual obligations to Members and to administer the Membership or complete the application process. Member’s personal information is used subject to any applicable privacy legislation.
23.1 To the extent the price payable for any supply by PBG to a Member is expressed to be other than as GST inclusive, the price will be exclusive of GST and in that event PBG may recover from the Member, the GST payable on any supply connected with the Rules or the Membership. This GST is an additional obligation, and is the GST if any, able to be imposed on PBG for such supplies made by them to the Member in relation thereto. The amount of GST recoverable is 10% of the GST exclusive price to the intent the total considerable payable for any such supplies shall be inclusive of GST and the GST inclusive price or amount shall be the sum of the GST exclusive price or amount plus the GST applicable to the supply. If the rate of GST so imposed on PBG increases to an amount higher than 10%, the GST recoverable shall be such higher percentage of the GST exclusive price or amount from the date of the increased rate coming into force. The GST may be recovered from the Member at the same time as payment is due for any applicable supply in accordance with the Rules.
24. RELATIONSHIP OF PARTIES
24.1 The relationship between PBG and the Member is contractual. The Member acknowledges and agrees with PBG that:
(a) No agency , partnership, joint venture, mutual association, or employment relationship arises between the Member and PBG directly or in directly in connection with the Member entering into their Membership Agreement;
(b) There is no letting on hire, renting or other right to use the PBG Boats given to Members by PBG in consideration of any reward to PBG as a result of their Membership Agreement, or the Rules ;
(c) The Member’s right to use the PBG Boats arise as a consequence of the Member obtaining Membership and are in the form of Credit Rights as contemplated by the Rules;
(d) The consideration granted and given to PBG by the Member is for the management services provided by PBG as contemplated by the Rules, and the Member agrees to be bound by its obligations as set out in the Rules in consideration of agreeing to pay to PBG, the Membership Fees , Administration Fee and other monies as contemplated by the Rules.
25. AMENDMENT OF RULES
25.1 The Member acknowledges and agrees that the Rules may be amended from time to time by PBG in its absolute discretion, and the Member agrees that it will be bound by such amendments or variations from the date of their effect.
26. FORCE MAJEURE EVENTS, HEALTH ORDERS AND OTHER GOVERNMENT ACTIONS
26.1 Subject to this Clause, PBG shall not be liable to a Member for any failure or delay in performing their obligations under their Membership Agreement and/or the Rules where such failure or delay was due to PBG being affected by a Force Majeure Event.
26.2 If PBG is affected by a Force Majeure Event:
(i) it shall notify the Members that a Force Majeure Event has arisen or may arise within a reasonable time of becoming so aware;
(ii) it may in its absolute discretion, introduce new policies, procedures or Rules (or amend existing policies, procedures and/or the Rules) having regard to the effect of the Force Majeure Event on the PBG business, the Membership of Members and their use of PBG Boats, the Membership Agreements or the Rules;
(iii) it may by notice to the Members, suspend its obligations under their Membership Agreements and/or the Rules (Suspension Action); and/or
(iv) it may terminate a Membership Agreement with one or more Members, after a suspension contemplated by a Suspension Action as contemplated by the preceding sub clause, has continued for a period of more than 3 months.
26.3 Where PBG:
(i) issues a notice under the preceding sub clause, such a notice may apply to a Force Majeure Event that occurs on, before or after the date of that notice;
(ii) introduces new policies, procedures and/or Rules (or amends existing policies, procedures and/or the Rules ) under the preceding sub clause, the Members shall be bound by any such new or amended policies, procedures and/or Rules;
(iii) issues a notice under the preceding sub clause, it shall not be in breach of its obligations to Members under any applicable Membership Agreement and/or the Rules, and PBG will not be liable to any Members for any loss or Cost suffered or incurred by any Member, because it took any of the actions, or did any of the things contemplated by the preceding sub clause; and/or
(iv) undertakes a Suspension Action, it may :
(a) suspend the obligations of Members to pay any Administration Fee or Membership Fee during the period of suspension;
(b) suspend PBG’s obligations to Members to accrue Credits, or Credit Rights, or the operation of the Credit System during the period of suspension;
(c) extend the initial Term of any Membership by the period of suspension;
(d) suspend the ability of Members to give notice to PBG to cease their Membership in respect of any Renewed Term under clause 3.4, during the period of suspension ; or
(e) extend the period of notice required to be provided by Members to PBG, in order to cease their Membership or terminate their Membership Agreement under clause 3, by the period of suspension.
27.1 PBG shall not be deemed to be in breach of the Rules by reason of any delay in performing, or any failure to perform, any of their obligations in respect to these Rules, if the delay or failure was due to any cause beyond the their control including but not limited to, terrorist attacks, floods, fire or accident, war or threat of war, sabotage, civil disturbance, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes or industrial trade disputes.
27.2 Headings and under linings are for the convenience of reference only and shall not affect the interpretation of the Rules. Words importing the singular include the plural and vice versa. Words importing a gender include any gender and expressions importing natural persons shall include companies and any other bodies or entities.
27.3 References to clauses, parties or schedules are references to clauses, parties or schedules of the Rules; a reference to any thing includes a part of that thing.
27.4 An agreement on the part of two or more persons binds them jointly and severally.
27.5 Where the day on or by which anything is to be done is not a PBG Business Day the time for the doing of that thing shall be the next PBG Business Day next following that day.
27.6 Person or entity includes a corporation or natural person.
27.7 Australian Consumer Law Disclosure:
(i) PBG contact details are as set out in the Membership Application Form and the Rules.
(ii) No warranties are provided other than those as prescribed by law (predominantly the Australian Consumer Law) and which by law cannot be excluded by agreement.
(iii) The period in which to claim any Warranty commences from the date in which the event to which the claim relates occurs, and expires on the date the warranty (if any) expires as prescribed by law.
(iv) In order to claim a Warranty (if any) from PBG, the Member must advise PBG in writing that a Warranty claim is being made together with the details of the Warranty claim being made.
(v) Normally, the Member bears all expenses associated with making a Warranty claim, unless (and only to the extent as prescribed by law) PBG is obliged at law to meet such expenses. If the Member wishes to claim expenses incurred in making a Warranty claim, the Member must communicate the nature of these expenses to PBG in writing at or about the time of making the Warranty claim and advise PBG why the Member is entitled to claim such expenses in accordance with law. Such expenses will only be reimbursed to the extent they are liable to be reimbursed by PBG in accordance with law.
(vi) Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure..
(vii) Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
* to cancel your service contract with us; and
* to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract
(viii) Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
* to cancel your service contract with us; and
* to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.