Kastaway Island N0 000
PRE PAID HOLIDAY MEMBERSHIP AGREEMENT
This Agreement made this _________ day of ____________ in the year of __________
AMONG:
Sea of Dreams Inc., the management company, having an office at 38 Beaverbank Road, Lower Sackville, Nova Scotia, Canada B4E 1G5
OF THE FIRST PART
AND: Kastaway Island, a Non-profit society, having an office at 38 Beaverbank Road, Lower Sackville, Nova Scotia, Canada B4E 1G5 (hereinafter called "Society")
OF THE SECOND PART
AND:
Name: _______________________________________________________________
Address:___________________________________Postal Code / Zip:_____________
Telephone Number: _________________ Fax: ______________ email: _________________
(hereinafter called "the guest")
OF THE THIRD PART
TOTAL AMOUNT:
o One o Two o Three o Four Pre Construction weeks @ $5,900.00US $ ________________
o One o Two o Three o Four Post Construction weeks @ $9,800.00US $ ________________
DEPOSIT: $________________
BARTER: $ _______________
BALANCE OF AMOUNT: $_______________
ESCROW SERVICE CHARGE 5% $ _______________
VACATION MONTH AND WEEK THE SAME EVERY YEAR? o YES o NO
VACATION SEASON: o November to April (winter) o May to October (summer)
FIRST ANNUAL ISLAND UPKEEP FEE PAYABLE ON: ____________________
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby by each of the parties acknowledged, the parties hereto covenant and agree each with the other as follows:
ARTICLE I
DEFINITIONS
1.1 "Definitions". For all purposes of this Agreement, the following terms defined in this paragraph 1.1 shall have the meanings set forth below unless the context expressly or by necessary implication otherwise requires:
(a) "Agreement" means this agreement entitled "Kastaway Island" Pre paid Holiday Membership Agreement" and all indentures, agreements or other instruments supplemental hereto or in confirmation, amendment or modification hereof:
(b) "Annual Island maintenance and upkeep fee" means
the fee defined as such in paragraph 5.1: and will be referred to as the "ANNUAL
UPKEEP FEE".
(c) "Assignee" means the person to whom any of the benefits of this Agreement have been assigned with the consent of Kastaway Island:
(d) "Balance of amount" means that sum of money which
is set out on the first page of this Agreement and entitled "BALANCE
OF AMOUNT";
(e) "Bylaws" means the bylaws of
the Society;
(f) "Deposit" means that sum of money paid by the Island guest upon execution of this Agreement, the amount of which is set out on the first page of this Agreement and entitled "DEPOSIT','
(g) "Barter" means the barter package arranged
by Kastaway Island with a member that has a service to offer Kastaway Island, of which
the guest wishes to exchange services or goods in place of cash.
(h) Escrow Service Charge" shall mean
that amount as charged by the third party escrow service.
(I) Furnishings and Equipment" shall have
the meaning attributed to it in paragraph 4.1 of this Agreement;
(j) "Notice of Abnormal Damage" means
a notice sent to the guest setting forth the guest's share of
extraordinary expenses in accordance with the terms of this Agreement
(k) "Notice of Annual Upkeep Fee"
means, the notice defined as such in paragraph 6.3;
(l) "Operating Costs" means all of the
costs incurred in respect to the management, maintenance, repair and
operation of the Island, as more particularly described in paragraph
5.3;
(m) "Personal Expenses" means costs, outlays and expenses incurred by or for the benefit of the guest or persons permitted by the guest to visit the island and includes, without limiting the foregoing:
(1) the cost and expense of telephone calls, personal or business fax calls, all bar purchases, gift and souvenir purchases, film processing, and clothing purchases by the guest while visiting the island
(2) water toy rentals incurred by the guest while visiting the island;
(3) diving charters and dive gear rentals
(4) fishing charters
(5) any expense or cost incurred in respect of the payment by the
guest or such other persons by credit card or similar means; and
(6) any other cost, outlay or expense identified in this Agreement as a Personal Expense;
(n) "Pre paid Holiday Membership Agreement"
means an agreement, substantially in the form of this Agreement entered
into by Kastaway Island with any guest (including the guest) in respect to
granting the use of a visit to our island through a pre paid amount good
for a one week visit every year for a total of ten consecutive years.
(o) "Island Upkeep Reserve" means the reserve established, in accordance with the terms of this Agreement, for painting, redecorating, refurbishing, repairs, upgrades and replacement of, and capita] expenditures incurred by Kastaway Island or the management company with respect to or in connection with, the vessel, including equipment related thereto, to the upkeep, maintenance, or haul out of the vessel and any recreational equipment for the use of the guest;
(p) "Rules" means the rules and regulations established by Kastaway Island from time to time in respect to the use and operation of the Island, of which Kastaway Island shall notify the guests from time to time;
(q) "Term" means the period of time commencing on the date of this Agreement and terminating in a maximum of ten years after your first visit to the island;
(r) "Total Amount" means that sum of money paid by the guest for the rights granted to the guest under this Agreement, the amount of which is set out on the first page of this Agreement and entitled "TOTAL AMOUNT";
(s) "What is Included" refers to the accommodation, meals, housekeeping services, activities onboard the Island and off the Island for each guest and shall include:
(3)The free use of some water toys, to include but not limited to snorkeling,
(4) large floating trampoline.
(5) Some free beverages with the meals
Following the termination of each guest’s visit, a general clean-up of, and housekeeping services for, each room occupied will be completed by the staff of Kastaway Island;
(t) "Guests Visit" means in any Year, a period of seven consecutive days and nights the beginning and ending times of which shall be established by Kastaway Island from time to time and may be amended by Kastaway Island from time to time;
(u) "Vacation Seasons" means, a total
of 50 weeks in a calendar year, the periods in each Year which are set
forth below, each of which are broken into high and low seasons
(v)"Island Location" means the exact location in the world which the Island will be located. This Island will be traveling around the world and the guest is responsible to make arrangements to travel to and depart from the location of the island for their visit
(w) "Guest" means all those persons who have been granted a Membership by Kastaway Island which grants the use of a visit to our island for a period of time specified and agreed upon by both parties on substantially the same terms and conditions. "Guest" also means that party that the week is assigned, sold or given to with the written approval of Kastaway Island no matter if this transaction is a one time event for a specific year or a transfer for the life of this agreement.
(x) "Year" means, in respect of a period of 50 consecutive weeks, the commencement and termination of which are established from time to time by Kastaway Island.
ARTICLE II
Grant
The specific week throughout the year during which the guest shall he entitled to visit the island will he determined by reservation on a first received, first served basis as set out in paragraph 2.3. The guest shall be entitled to a visit of the island during a high or low season so reserved in each Year of the Term, as designated below "VACATION SEASON" on the first page of this Agreement
If any portion of the guest’s visit is not utilized in any Year, there shall be a carry-over of the unused time to subsequent years. The following year the guest may visit for a period of two weeks and so on. Kastaway Island must be informed of this decision in writing at least 60 days in advance and will therefore offer that week to outside charter sales for income use for Kastaway Island.
2.2 Reservations. A reservation to visit the island during a
vacation season within each year as designated on the first page of
this Agreement must be made by the guest no earlier than 12 months before
and no later than 60 days in advance of the commencement date of the visit
which the guest wishes to reserve. Reservations may be made by telephone,
fax, e-mail or our online booking allowing the "member" only to book for 10 years in advance
A reservation must be confirmed by Kastaway Island before it is
valid. Confirmation by Kastaway Island of a reservation will be made in
writing and sent via fax or e-mail. A guest may cancel the reservation of
a visit by giving written notice to Kastaway Island at least 30 days prior
to the commencement of such visit. The procedures, rules and requirements
pertaining to reservations of visits are more particularly set out in the
Rules. Such procedures, rules and requirements may from time to time be
modified and amended by Kastaway Island, in its sole discretion, which
shall then notify guests of the same forthwith.
2.3 Occupancy. Subject to the rights of the guest contained in paragraphs 10.1 and 10.2, the rights granted to visit the island herein to the guest is only for the benefit of the guest The guest may sell, assign or give away the right to use the guest’s week to another party and must confirm in writing to Kastaway Island the full particulars of the new guest. For the purpose of this Agreement "occupied" means sleeping overnight.
2.4 Society Membership. The purchase by a guest of a Pre paid Holiday Package Membership to use to make a visit to the Island as herein set forth entitles the guest to a membership in the Society which shall manage, administer and represent the interest of the guest in respect of the Island until the end of the Term. The guest's membership in the Society entitles him to visit for one week per year for a period not to exceed ten consecutive years, whereby the guest’s right to visit and membership will be terminated. . The guest's membership in the Society entitles him to voting rights to elect the directors of the Society and to vote at meetings of members of the Society as set forth in the Bylaws.
The Society shall, at the end of year eleven, transfer to the owners of Kastaway Island all of its interest, at such time, in the Island, being the end of the Term, on an as is where is" condition, free and clear of all liens, charges or other encumbrances. Kastaway Island shall, upon such transfer, own and manage the entire vessel for the use and benefit of Kastaway Island, their owners, assignees.
ARTICLE III
Consideration
3.1 Total Amount. The Total Amount for the granting to the guest of the right to visit described in Article II is set out on the first page of this Agreement and is payable to Kastaway Island as set out below. The guest shall also be liable for and pay all sales taxes, goods and services taxes transfer fees and any other taxes and fees properly payable to any governmental authority upon or in connection with the purchase of such pre paid holiday package membership.
3.2 Deposit. The guest will deliver the Deposit
to Kastaway Island, upon execution by the guest of this Agreement, the
receipt of which Kastaway Island hereby acknowledges. The Deposit will he
held by Kastaway Island in a separate escrow account until the transaction
contemplated herein has been completed, at which time the Deposit shall be
credited to the first annual upkeep fee pursuant to this Agreement.
Completion of the transaction contemplated herein shall occur when
Kastaway Island and the guest have both executed this Agreement and the
Total Amount has been paid by the guest to Kastaway
Island and a certificate evidencing the membership granted to the guest
under this Agreement has been issued to the guest. Upon completion of the
transaction, Kastaway Island shall deliver such certificate to the guest.
If the guest wishes to finance the payment of any portion of the Total
Amount by way of Financing and is not approved for
such financing by a lender to which application for the same has been made,
prior to the date the Balance of Amount is required to be paid under paragraph
3.3, then the Deposit paid by the guest shall be returned to him forthwith
without interest, penalty or deduction and this Agreement shall be terminated
and at an end and neither the guest nor Kastaway Island shall thereafter have
any claim against the other in respect of or pursuant to this Agreement.
3.3 Payment of Balance. Subject to the provisions of paragraph 3.2, the guest agrees to pay to Kastaway Island the Balance of the Amount in cash or by certified cheque or money order or bank draft upon that date which is 30 days following the date of "Request for final Payment" sent to the guest. If the guest is financing the payment of any portion of the total Consideration by way of Financing in the amount set forth on the first page of this Agreement, the guest shall use his best efforts to ensure that the Financing shall be advanced by such date stipulated herein for the payment of the Balance of the Amount, Subject to the provisions of paragraph 3.2 and the execution of this Agreement by Kastaway Island, if the guest does not pay the Balance of the Amount on the date stipulated herein for the payment of the same, then, at the option of Kastaway Island, the guest shall forfeit to Kastaway Island, the application to become a member of the Society together with all interest in this pre paid holiday package, and all the rights of the guest under this Agreement shall terminate and be at an end and the guest shall thereafter have no claim against Kastaway Island in respect thereto, and the deposit will be refunded and the number assigned to the next in line.
ARTICLE IV
Water Toys, Diving Equipment, Fishing Equipment and Damage
4.1 Furnishings and Equipment. The membership granted to the guest hereunder to visit the Island has been granted on the basis that the Island, at the time of the visit, is wholly furnished and ready for the guest to visit. Any floor plans, lists of Furnishings and Equipment, or water toys shown to the guest has been for display purposes only. Each room shall have Furnishings and Equipment of equal or better quality to those so represented, provided that Kastaway Island in its sole discretion, shall have the right to alter, make changes in or substitutions for the Furnishings, Equipment and Toys, so long as such alterations, changes and substitutions do not, in the reasonable opinion of Kastaway Island decrease the character, use, operation or quality of the Island.
4.2 Damage. The guest will be responsible for all damage to any water toys, equipment rentals and the furnishings of the room assigned and for all theft off or breakage or other damage the Furnishings, Equipment,Toys and Rentals which occurs while the Island is visited by the guest or is caused by the guest, his guests or invitees, reasonable wear and tear excepted, including, but not limited to, damage or theft which is not insured or in respect to which a deductible is applicable. Chipped, cracked, burned, torn, sunk, lost or otherwise damaged Furnishings, Equipment, Toys and Rentals shall be counted as breakage.
4.3 Abnormal Damage. An inspection shall he made by Kastaway Island at the expiry of each guest’s visit to which the guest is entitled hereunder and the guest will be assessed for all damage that may have occurred during the guest’s visit, or for all missing or damaged Furnishings, Equipment, Toys and rental gear as described in paragraph 4.2. The guest shall pay for such damage as determined and assessed by Kastaway Island, within 30 days after the date of receipt by the guest of a Notice of Abnormal Damage in respect thereto.
4.4 Condition of Island. The
guest agrees to leave his room and the Furnishings, Equipment, Water Toys
and any Gear Rentals in good operating repair, proper working order and in
a clean condition at the end of the visit to which he is entitled,
reasonable wear and tear only excluded.
ARTICLE V
Annual Upkeep Fee
5.1 Obligation. The guest shall be responsible in each calendar year during the Term commencing with the calendar year set out on the first page hereof, for a fee (the "Annual Upkeep Fee which shall be levied annually.' The Annual Upkeep Fee shall be calculated in accordance with paragraph 5.2 of this Agreement. It has been agreed upon by Kastaway Island that this fee will not increase during the first three years and has been set at $450.00 per year for three years. It is furthermore agreed upon that this fee will not exceed a 10% increase in any calendar year thereafter.
5.2 Method of Calculation. The Annual Upkeep Fee shall be in an amount which includes the portion of the Operating Costs and Replacement Reserve attributable from time to time to the time during which the guest is entitled to visit the island hereunder The guest shall pay, for each calendar year during the Term, an Annual Upkeep Fee in respect to each week the guest has purchased. commencing with the calendar year set out on the first page hereof, as follows:
5.3 Operating Costs. Operating costs shall generally be all
costs referable to the actual management. maintenance, repair and
operation of the Island and such costs shall include, but shall not be
limited to the costs of the following:
(a) dry dock repair fees;
(b) haulout fees to include but not limited to scraping and painting of the hull, replacement of worn and broken items, through hull fittings, bearings;
(c) taxes, assessments or levies charged in respect of the Island;
(d) all fuel consumed in respect to the use and operation of the Island;
(e) Insurance in respect of the Island including fire, theft and extended coverage, hull, machinery and protection and indemnity insurance;
(f) fire protection and security services;
(m) reservation system for the Island:
(n) data processing; and
(p) satellite communication costs for telephone, fax, weather fax, high speed data transfer, e-mail and cellular costs.
5.4 Replacement Reserve. The Replacement Reserve shall include the Following;
(1) a reserve for painting and redecorating of the Island as required;
(2) a reserve for the repair of the Island including major upgrades and replacement of any or all Water Toys, Fishing Gear, Diving Gear,
(3) a reserve for replacement of furnishings, equipment, linen, bedding, dishes drapery.
5.5 Calculation of Replacement Reserve. Kastaway Island shall allocate that portion of the Annual Upkeep Fee which Kastaway Island reasonably deems adequate to a Replacement Reserve.
5.6 Operating Costs Account. Kastaway Island shall hold
or cause to be held all monies allocated by it from the Annual Upkeep Fee
to operating costs in a separate account established by Kastaway Island
with a chartered bank or trust company or financial institution for all
fees payable to Kastaway Island in respect to operating and maintenance
costs (both real and personal) and to pay from such funds all charges or
obligations incurred by it with respect to operating costs relating to the
Island.
5.7 Replacement Reserve Account Kastaway Island
shall keep and maintain or cause to be kept and maintained at all times
the monies allocated to the Replacement Reserve in an interest bearing
account with a chartered bank, trust company or financial institution
separate and apart from other monies and the monies so allocated shall be
used for painting. redecorating, repairs, refurbishing upgrades
replacements of and capital expenditures incurred by Kastaway Island with
respect to or in connection with, the Island, including appurtenances and
equipment related thereto and recreational equipment for the use of
guests. Any monies in the Replacement Reserve account, upon the
termination of this Agreement, shall be the sole and exclusive property of
Kastaway Island to be used for the purpose set out herein, subject to such
monies being held in trust for such purpose by Kastaway Island as herein
before provided. Any interest earned on the Replacement Reserve account
shall form part of the Replacement Reserve.
ARTICLE VI
Management
6.1 Management Obligation of Kastaway Island.
Kastaway Island covenants with the guest to provide or cause to be
provided management services in order to maintain the Island, the
furnishings, equipment and all appurtenances relating to the Island to the
standards set forth in paragraph 6.5 and to perform all of the
obligation's generally inferred under Article V. Kastaway Island covenants
that all such duties shall be performed in a prudent and workmanlike
manner.
6.2 Budget. Kastaway Island agrees that. in each calendar year, prior to the first day of November, Kastaway Island shall prepare or cause to be prepared a budget of the estimated Operating Costs for the next succeeding calendar year and shall, subject to paragraph 5.5, calculate the amount to be
allocated for the Replacement Reserve.
6.3 Notice of Assessment. On or about January 1st in each
calendar year of the Term. Kastaway Island shall prepare or cause to be
sent to each guest a notice (the "Notice of Annual Upkeep Fee"")
setting forth the guest's Annual Upkeep Fee, with respect thereto, for
such calendar year and the amount to be allocated from such Annual Upkeep
Fee to the Replacement Reserve.
6.4 Records. Kastaway Island shall maintain or cause to he
maintained records of management showing all receipts and expenditures
relating to the Operating Costs and shall prepare and submit or cause to
he prepared and submitted upon request by the guest prior to the first day
of May in each calendar year, a statement (prepared in accordance with
generally accepted accounting principles) showing the receipts and
expenditures incurred in the preceding calendar year together with an
accounting of all trust monies held by Kastaway Island and / or Sea of
Dreams Inc..
6.5 Island Management. Kastaway Island has entered into a Management Agreement with Sea of Dreams Inc. to cause, among other matters, the Island to he managed and maintained by Sea of Dreams Inc. until the end of the Term. Sea of Dreams Inc. covenants and agrees to maintain or cause to he maintained the Island in accordance with reasonable commercial standards consistent with the character, age, size, use and location of the Island.
ARTICLE VII
Guest's Obligation for Payment
7.1 Notice of Assessment. The guest covenants and agrees in pay Kastaway Island the amount set forth in any Notice of Annual Upkeep Fee or Notice of Abnormal Damage or in any other notice issued pursuant to the terms of this Agreement or the Bylaws within 30 days after the date of such notice. Payments not received within such 30 days shall be subject to a late charge of l0 % of the amount past due or 2½ % per month (being 26.82% per year) of the amount past due, whichever is greater. The guest will not be entitled to visit the Island unless all assessments, interest and penalties have been paid in full at least 30 days before the commencement of a visit to which he is entitled hereunder
7.2 Personal Expenses. The guest agrees to pay or settle to the satisfaction of Kastaway Island and / or Sea of Dreams Inc, all Personal Expenses at the time of the guest's departure from a visit to the Island at the end of the visit to which be is entitled hereunder. Any Personal Expenses not so paid within 30 days of billing will be subject to late charges as provided in paragraph 7.1.
ARTICLE VIII
Default by Vacationer
8.1 Suspension of Right. If the guest shall default in making any payment required to be made pursuant to Article VII, Article IX, or any other terms of this Agreement or the Bylaws, or shall be in default of any non-monetary obligation under this Agreement which has not been remedied within I0 days after receipt by the guest of notice of such default, then the guest's right to visit the Island may be suspended by Kastaway Island until such time as all payments due, together with all late charges assessed, have been duly paid in full, or until such time as all the guest's obligations have been completed.
8.2 Continued Default. If the guest defaults in making any payment required to be paid according to Article VII, Article IX, or any other terms of this Agreement or the Bylaws or in performing or observing any other obligation of the guest under this Agreement or the Bylaws, and such default has not been remedied within 180 days from the date thereof and the guest has been given a minimum of two written notices thereof, Kastaway Island may terminate this Agreement upon written notice to the guest, and from the date of such notice all of the guest’s right to visit pursuant to the provisions of this Agreement and membership in the Society shall be terminated. Furthermore from the date of such notice of termination, Kastaway Island, in addition to any other rights and remedies it may have shall he entitled to the full and exclusive right to use and occupy any room on the island free and clear of all rights of the guest pursuant to this Agreement or otherwise, and Kastaway Island may grant the right to visit to which the guest is entitled hereunder to another person or may retain it for any other purpose. In the event following such termination Kastaway Island shall not be obliged to account to the guest for the proceeds of any income derived from any rental income. The monies received by Kastaway Island on account of rights of occupation or otherwise following such default or termination shall be retained by Kastaway Island as its sole and exclusive property as liquidated damages and not as a penalty. In the event of termination as herein provided, the guest shall, following such termination, be released from all obligations hereunder except for any monies then owing to Kastaway Island, or to Sea of Dreams Inc, or any other liabilities then outstanding of the guest, under this agreement or to the Society under the bylaws.
.
ARTICLE IX
Failure to Vacate and Unauthorized Use
9.1 Failure to Vacate. In the event that the guest fails to vacate his room at the expiration of the visit to which he is entitled as herein provided, or otherwise makes unauthorized use or occupancy of the Island, or prohibits another person who is entitled to use and occupy the Island from occupying and making use the Island during his period of entitlement the guest shall, at the option of Kastaway Island:
(a) be subject to immediate removal, eviction or ejection from the Island wrongfully used and occupied:
(b) reimburse Kastaway Island and any other person entitled to visit the island, all costs and expense's incurred by it or him, as the case may be, as a result of such conduct including, but not limited to costs of alternate accommodation, travel costs, court costs and re reasonable legal fee's incurred in connection with removing or ejecting the guest and costs ( including reasonable legal fees) incurred in collecting such disbursements: and
(C) pay to Kastaway Island for and on behalf of all others affected by such failure to vacate or unauthorized use or occupancy of the Island, as liquidated damages (in addition to the cost's and expenses referred to above) and not as a penalty, an amount equal to three times the rate established by Kastaway Island as the daily rate for the rental of the Island for each and every day or fraction thereof.
ARTICLE X
Non disturbance, Future Encumbrances and Liens
10.1 Guest Agreement to Non disturbance. The guest, by executing this Agreement, executes and becomes a party to the Non disturbance Agreement, subject to and upon the guest and Kastaway Island entering into such agreement, and covenants and agrees, subject to and upon such agreement becoming effective, to be bound by, and perform and observe, the covenants and agreements to be performed and observed by the guest thereunder.
ARTICLE XI
11.1 Liens. Kastaway Island covenants that, if at any
time, a lien is registered with respect to the vessel which threatens any
of the rights of the guests hereunder, Kastaway Island shall take
immediate steps, to either remove the lien or to defend any action with
respect to such lien, and should such defense not be successful, shall
take immediate steps to remove such lien, all with the intent that at no
time shall the rights of a lien holder threaten the guest's rights
hereunder
ARTICLE XII
Guest's Covenants
12.1 Covenants. The Guest covenants with Kastaway Island:
(a) to visit the island only for recreational or business purposes, in accordance with the terms and conditions of this Agreement;
(b) not to damage or permit damage to any room, furniture, equipment, water toy, diving and fishing gear or any rental unit offered outside normal wear and tear only excepted, during his visit to the Island.
(c) not to display any sign, advertisement or notice of any type on the island and not to erect any exterior antenna or aerials;
(d) not to carry out or permit to be carried out any unlawful, improper,
immoral, offensive or noxious act, matter or thing during the visit, nor
permit any disturbance, nuisance or annoyance detrimental to the enjoyment
of adjoining rooms or the comfort and peace of the other visitors
(e) not to do or keep, or permit or suffer to be done or kept, in any room or its appurtenances anything which will render void or violable, or conflict with the requirements of, any policy or policies of insurance (including any regulations of fire insurance underwriters applicable to such policy or policies) whereby the Island is insured, or which may cause any increase in any premium to be paid in respect of any such policy or policies from time to time.
(f) to observe, perform and comply with all laws, ordinances,
regulations, requirements and rules in existence from time to time of any
governmental authority which has jurisdiction in respect to the guest, the
Island or the operation of the Island, the bylaws and the rules, and to
ensure compliance by the guest and the guests family, and invitees with
such laws, ordinances, regulations, requirements and rules of any
governmental authority, the bylaws and the rules;
(g) to indemnify and save harmless Kastaway Island
from any and all actions, Suits, claims, liabilities, damages, costs,
losses and expenses incurred or sustained by Kastaway Island arising from
or connected with:
(i) any breach, violation or non-performance of any covenant, agreement, condition or proviso in this Agreement set out and contained on the part of the guests to be fulfilled, kept, observed and performed;
(ii) any damage to any portion of the Island by the guest, his agents, Members or invitees;
(iii) any injury to the guest or any agent, Members or invitee of the guest, including death resulting at any time therefrom, occurring in or about any visit
(iv) any other act or omission of the guest;
(h) not to remove or carry away or permit to be removed or carried away
from any portion of the Island any appurtenances or Furnishings and
Equipment and not to make or permit to be made any alterations, additions,
improvements, changes or decorations in or to any room or any of its
Furnishings and Equipment;
(i) to peaceably vacate and surrender and yield up to Kastaway Island the room which the guest is occupying at the termination of each visit to which he is granted the rights hereunder; and to cause any liens of any nature or kind which may be registered against any portion of the Island a result of any act or omission of the guest to be discharged forthwith. Breach of this provision shall result in immediate termination of the guest's rights under this Agreement without any notice whatsoever.
ARTICLE XIII
Right of Entry
ARTICLE XIV
Insurance and Damage and Destruction
14.1 Insurance. Kastaway Island shall obtain fire insurance for the Island and the furnishings, equipment, water toys, diving and fishing gear, rental equipment and all other items relating to the Island, in an amount sufficient to cover the full replacement value of such items and furnishings and equipment, as reasonably determined by Kastaway Island. Such fire insurance policy shall contain all standard extended and supplementary coverage clauses, including all risks coverage, as may be applicable. In addition, Kastaway Island shall obtain such insurance coverage as a prudent owner of a vessel of a character, age, size and use would obtain.
The proceeds payable under such insurance policies shall be payable to Kastaway Island or such other parties as may be directed by Sea of Dreams Inc. Each insurance policy shall contain a waiver of subrogation against all guests and each of their licensees and assignees.
14.2 Payment of Proceeds. If destruction or
damage to the Island occurs and Kastaway Island:
(a) is obligated to repair such damage or destruction, or elects to
repair such damage or destruction to any portion of the Island, the
proceeds of the insurance referred to in paragraph shall be used for such
repair by Kastaway Island in such manner as it determines in its sole
discretion;
(b) has elected not to repair or replace such damage or destruction, the proceeds of insurance paid to Kastaway Island shall be disbursed by Kastaway Island in the following manner:
(1) Kastaway Island shall pay out all mortgages and other financial encumbrances registered against the Island from such proceeds;
(2) a sum of money shall be rebated to each of the guests equal to his pro-rate share of the balance of such proceeds based on the number of visits to which he has been granted the rights, as reasonably determined by Kastaway Island
Upon payment of such sum to the guest, this Agreement shall be terminated and at an end and all rights of the guest under this Agreement shall cease, provided that, notwithstanding the termination of this Agreement, the guest shall continue to be liable for any monies then owing to Kastaway Island, and any other liabilities of the guest then outstanding, under this Agreement
.
ARTICLE XV
Obligations
15.1 Joint and Several. If this Agreement is signed by more than one guest, each guest shall be bound separately and severally as well as jointly with the other or others. If this Agreement is entered into with respect to more than one guest per family having a membership, it shall be construed as though a separate agreement was entered into for each guest’s visit.
15.2 This Agreement will only be binding upon and enforceable against a party to this Agreement when duly executed by such party.
ARTICLE XVI
General Contract Provisions
16.1 Execution of Documents. The parties hereto shall and will sign such further and other instruments and documents and do and perform and cause to be done and performed such further and other acts and things as may be necessary or desirable to give full force and effect to this Agreement or any part hereof.
16.2 Time. Time shall be of the essence of this Agreement and every part hereof.
16.3 Entire Agreement. This Agreement expresses the entire agreement between the parties hereto with respect to all matters herein and its execution has not been induced by, nor do any of the parties rely upon or regard as material, any representations or warranties whatsoever not incorporated herein and made a part hereof and shall not be amended, altered or qualified except by a memorandum in writing signed by all parties hereto and any amendments, alterations or qualifications hereof shall be null and void and shall not be binding upon any party who has not given its or his consent as aforesaid.
16.4 Notices. Any notice, direction or instrument required or permitted to be given hereunder to any party shall be given in writing and hand delivered, mailed postage prepaid by registered mail, transmitted by fax or other form of recorded communication or delivered by overnight courier to the address of such party as set out below and, if delivered, shall be deemed to have been given or made on the day on which it was delivered, if mailed, shall be deemed to have been made or given on the fifth business day following the day on which it was mailed and if transmitted by fax or other form of electronic recorded communication shall be deemed to have been made or given on the first business day following the day on which it was transmitted, and any of the parties hereto may, from time to time, give notice of any change of such party's address in the manner herein provided and, in such event, the address of that party shall be deemed to be changed accordingly. Notwithstanding the foregoing, in the event of threatened or actual mail strike or slow down, notice shall not be given by mail. The addresses of the guest, Kastaway Island, Sea of Dreams Inc and the Society are as follows:
Guest: at the address noted on the first page of this Agreement.
Kastaway Island:
Local calls (902)-865-9090
The Society Fax (902)-865-9090
e-mail d.byers@ns.sympatico.ca
URL http://www.kastawayisland.com
Mail David Byers
38 Beaverbank Road
Lower Sackville,
Nova Scotia, Canada
B4E 1G5
16.5 Enurement. Subject to the restrictions on assignment herein contained, this Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective heirs, personal representatives, successors and assigns.
16.6 Interpretation. The singular of any term in this Agreement includes the plural and vice versa. the use of any term is equally applicable to any gender and. where applicable, a body corporate, the word "or" is not exclusive and the word "including" is not limiting (whether or not non-limiting language such as "without limitation" or "but not limited to" or words of similar import are used with reference thereto).
16.7 Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware and the laws of Canada
and the laws of the Country the Island is in at the time of the visit
applicable therein.
(I 6.8) Headings. The division of this Agreement
into articles, sub articles, paragraphs and so on and the insertion of
headings is for convenience of reference only and shall not affect the
construction or interpretation of this Agreement.
16.9 Severability. If any provision of this Agreement shall be or become illegal or unenforceable in whole or in part, the remaining provisions shall nevertheless be valid, binding and subsisting.
IMPORTANT NOTICE TO BUYER
You Have a Right to Cancel This Contract.
I. You can cancel this contract by giving the seller a notice of cancellation in person or by regular or registered mail, by fax, by electronic mail or by any other reasonable method.
2.You can cancel at any time. You should download a copy of this contract when you sign it.
3. If you send the notice of cancellation by mail, fax or electronic mail, it doesn't matter when the seller receives the notice the process of cancellation will take place within 30 calandar days. Should you wish to re apply for membership the proper procedures will apply and no additional favour will be offered because you had a membership prior to the second application. Yopu will forfett your number and go to the bottom of the list.
4.You can send a notice of cancellation to the following
address or fax number or address:
Kastaway Island:
Local calls (902)-865-9090
The Society Fax (902)-865-9090
e-mail d.byers@ns.sympatico.ca
URL http://www.kastawayisland.com
Mail David Byers
38 Beaverbank Road
Lower Sackville,
Nova Scotia, Canada
B4E 1G5
5.You do not need to give a reason for canceling..
6. The seller must fully refund your money within 30 days after you give the notice of cancellation, minus the 10% administration fee and in the event of time used, minus the charter time used as recorded by Kastaway Island. If it is just the deposit amount to be returned the seller must fully refund your money within 30 days after you give the notice of cancellation, minus the 5% escrow service fee.
7, The Consumer Protection Act of Canada and the United States of America applies to this contract and may provide you with additional rights.
IN WITNESS WHEREOF THE GUEST HAS READ AND UNDERSTANDS ALL OF THE PREPAID VACATION MEMBERSHIP AGREEMENT, ACKNOWLEDGES RECEIPT OF A COPY HEREOF AND AGREES TO ALL THE TERMS. CONDITIONS, AND PROVISIONS HEREIN. THIS AGREEMENT, INCLUDING THE TERMS AND CONDITIONS CONTAINED ON PAGES ONE THROUGH THIRTEEN, CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES.
THE GUEST AND THE UNDERSIGNED MARKETING AGENT OF KASTAWAY ISLAND ACKNOWLEDGE AND AGREE THAT THE MARKETING AGENT HAS SOLELY REPRESENTED AND ACTED AS MARKETING AGENT OF KASTAWAY ISLAND WITH RESPECT TO THE INTEREST GRANTED TO THE GUEST HEREUNDER AND THE MARKETING AGENT HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES TO, OR ENTERED INTO ANY AGREEMENTS WITH, THE GUEST ON BEHALF OF ITSELF OR KASTAWAY ISLAND IN RESPECT OF SUCH INTEREST AND THE TERMS OF ITS GRANT EXCEPT AS SET OUT HEREIN.
GUEST: ______________________________Date of execution: _________________
WITNESS: __________________________ Date of execution: _________________
KASTAWAY ISLAND
By it’s Management Company SEA OF DREAMS Inc.
Per: ____________________ _________________
Marketing Agent: __________________ Date of execution: