These General Terms and Conditions govern the relationship, rights, and obligations between Lyman Morse Boatbuilding, Inc. (“Lyman-Morse”) and the owner of a vessel requesting storage and/or repair services from Lyman-Morse (“Customer”). Customer shall be deemed to have consented to these General Terms and Conditions in consideration of Lyman-Morse providing access to its property and any requests for and the provision of its services.
Definitions. The following definitions apply to these General Terms and Conditions: (i) “Customer” shall mean and include the vessel, its owner and its representatives, employees, agents, affiliates, independent contractors, subcontractors and invitees; and (ii) “Lyman-Morse” shall mean and include Lyman Morse Boatbuilding, Inc., its owners, officers, employees, representatives, agents, affiliates, independent contractors, subcontractors and invitees.
Compliance. Customer agrees to (i) comply with all applicable local, state and federal laws, statutes, and regulations while on or alongside Lyman-Morse property and (ii) abide by all rules and regulations of Lyman-Morse established for the safety, benefit, and convenience of its clients, customers, invitees and guests. Customer shall not discharge marine heads or septic, oily or contaminated bilge water, or any other contaminated substance, and all waste and hazardous materials will be disposed of strictly in accordance with applicable laws. Bottom sanding and scraping must be performed in conjunction with an approved collection system. No fires are permitted on Lyman-Morse property, including docks and floats. Space heaters or similar electrical heating appliances are allowed only with prior written permission of Lyman-Morse. Any debris left by or damage caused by Customer will be remedied by Lyman-Morse at Customer’s expense.
Invoices; Payment. Invoices for all storage, dockage, services and materials are due on receipt. Lyman-Morse reserves the right to add a fee of 1.5% per month, prorated daily, to accounts past due. No vessel may depart Lyman-Morse property until all outstanding invoices for storage, dockage, services and materials have been paid in full. An additional fee of $500 per day will be added to Customer’s balance due, as liquidated damages, and not as a penalty, for failure to comply with this requirement.
Vessel Care and Movement. Customer at all times shall retain full care, custody and control of the vessel. Lyman-Morse personnel, while on the vessel or exercising Lyman-Morse rights hereunder, acts only as an agent of Customer for such purpose. Customer releases Lyman-Morse from any liability as a warehouseman, liveryman, bailee or landlord, it being agreed that none of such relationships exist as a result of a service provider – customer relationship. Customer agrees Lyman-Morse may relocate Customer’s vessel while it is located on or alongside Lyman-Morse property in such manner as Lyman-Morse may deem appropriate for the services being provided. Vessel relocation fees may be included in the invoiced services.
Subcontractors. All or part of any service provided to Customer may be subcontracted by Lyman-Morse to subcontractors of its choosing. Any such subcontractor shall have the benefit of all defenses, exemptions and limitation of liability provided to Lyman-Morse and shall be considered an independent contractor and not an agent or employee of Lyman-Morse.
Limited Warranty. Subject to the Limitation of Liability clause below, Lyman-Morse warrants to Customer that Lyman-Morse’s maintenance, service and repair of Customer’s vessel shall be free from defects in workmanship (excluding Customer-furnished labor, materials, machinery, goods, accessories, equipment and/or supplies) for a period of twelve (12) months from the date of service, provided Customer complies with the Warranty Claim Process described below. The liability of Lyman-Morse under this Limited Warranty shall not in any case extend beyond repair or replacement of such defects. Any such defects shall be remedied or replacements made by Lyman-Morse at Lyman-Morse shipyards in Thomaston or Camden, Maine. If Lyman-Morse and Customer agree that the replacements or repairs under this clause cannot be conveniently made at Lyman-Morse shipyards, subject to prior written approval by Lyman-Morse’s President, Customer may have the replacements or repairs carried out elsewhere. In such case, Lyman-Morse shall reimburse Customer the documented expenses incurred by Customer, but such reimbursement shall not exceed the estimated cost of carrying out the warranty work at Lyman-Morse yards, and shall be subject always to the Limitation of Liability clause below. Lyman-Morse’s Limited Warranty shall not apply to materials, machinery, goods, accessories, and equipment unless the foregoing are manufactured by Lyman-Morse. For all other materials, machinery, goods, accessories, and equipment provided or installed upon the vessel, the manufacturer’s guaranties and/or warranties shall run directly to Customer or be assigned by Lyman-Morse to Customer upon re-delivery of the vessel. Lyman-Morse and Customer agree that Lyman-Morse shall not be responsible for the guaranties and/or warranties covering any of the materials, machinery, goods, equipment or accessories contained on the vessel. EXCEPT AS SET FORTH IN THIS CLAUSE, LYMAN-MORSE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND DOES NOT MAKE ANY IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF WORKMANLIKE PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY WITH RESPECT TO THE VESSEL OR ANY PART OR COMPONENT THEREOF.
Liens. It is expressly agreed that all charges, costs and expenses of hauling, launching and transporting Customer’s vessel; all maintenance, service and repairs to Customer’s vessel; all dockage and storage charges; all sales of materials thereto; all damages caused by the vessel; and all other costs and expenses incident thereto shall create a maritime lien on the vessel pursuant to the Federal Maritime Lien Act, 46 U.S.C. §31341 et. seq., and/or a lien pursuant to the Maine Marine and Boatyard Storage Act, 10 M.R.S.A. §1381 et. seq. and/or a security interest in said vessel, her tackle, apparel, and furniture within the meaning of Maine law, 11 M.R.S.A. Sec. 9-102, et. seq., for the benefit of Lyman-Morse, its successors and assigns. If Customer fails to pay the full amount owed to Lyman-Morse within thirty (30) days of the date said amount is due, Lyman-Morse shall have the right to resort to all rights and remedies granted under the provisions of federal law or Maine law, or both, including, but not limited to, the right of seizure and public or private sale. In the event of non-payment, Customer and vessel (in rem) shall be liable for all costs relating to any seizure, including but not limited to all attorney’s fees and costs, including legal custody costs, as well as the 1.5% per month service charge applicable to all amounts that are past due. This clause may only be waived by Lyman-Morse’s President in writing. Any notice regarding authority to incur a lien on the vessel shall be provided in writing to Lyman-Morse’s President. Notice in any other manner or to any other individual shall not be effective.
Other Work. Customer may not perform work on Customer’s vessel or equipment while the vessel is located on or alongside Lyman-Morse property unless prior written approval has been obtained from Lyman-Morse. Any agent, invitee, subcontractor or supplier seeking to perform work for Customer and/or its vessel while on or alongside Lyman-Morse property shall provide proof of insurance in an amount not less than that required by Lyman-Morse’s Contractor Agreement for bodily injury and property damage, and naming Lyman-Morse as an additional insured. Customer agrees to release, defend, indemnify, and hold Lyman-Morse harmless from any and all costs, losses, liabilities and damages arising from or relating to the actions, inactions, work and performance of work on the vessel by Customer and its agents, invitees, subcontractors and suppliers, including costs of defense and attorneys’ fees. Any such agents, invitees, subcontractors and suppliers must sign in and sign out at the Lyman-Morse front office on a daily basis. Lyman-Morse reserves the right to invoice Customer for yard fees in connection with the performance of work by outside contractors.
Insurance and Indemnity. Customer shall maintain hull, protection and indemnity, and pollution insurance coverage for the vessel while it is located or stored on or alongside Lyman-Morse property, and that such insurance shall be the sole source of recovery for Customer in the case of wrongful death, personal injury, damage, or loss to Customer, excluding property damage or loss covered by the Limited Warranty above. Lyman-Morse shall be named as an additional insured on Customer’s insurance policies and with a waiver of subrogation against Lyman-Morse. Customer shall provide Lyman-Morse with certificates of insurance identifying (i) name of insurer, (ii) policy number, (iii) effective dates of coverage, (iv) coverage limits for all policies, and (v) compliance with the conditions of this clause. Customer releases, holds harmless, and waives all rights of subrogation against Lyman-Morse for any and all claims, causes of action, liabilities, and expenses for personal injury, wrongful death, damage, or loss to Customer, regardless of cause, including but not limited to that caused by Lyman-Morse’s sole or concurrent negligence, errors, omissions, breach of contract, or other legal fault, but excluding claims for property damage or loss covered by the Limited Warranty, above (“Released Claims”). Should Customer assert a Released Claim against Lyman-Morse, Customer shall defend and indemnify Lyman-Morse from such Released Claim.
Limitation of Liability. Subject to the Insurance and Indemnity clause above, Lyman-Morse liability for wrongful death, personal injury, damages, losses, fines, penalties, costs and expenses arising from or relating to services performed, sole or concurrent negligence, errors, omissions, breach of contract, or other legal fault arising from or related in any way from Customer’s use of Lyman Morse property or receipt of Lyman-Morse services (“Claims,” or individually a “Claim”) shall be limited to the total amount invoiced by Lyman-Morse to Customer for such property use or for such services. This limitation shall apply regardless of the cause of action or legal theory pled or asserted, including but not limited to breaches of Limited Warranty. Customer releases, holds harmless, defends, and indemnifies Lyman-Morse from all Claims in excess of this limitation amount.
Warranty Claim Process. Notice must be given to Lyman-Morse within 72 hours of Customer’s first knowledge of a potential Claim (an “Occurrence”). Such notice must allow for a reasonable opportunity for Lyman-Morse to inspect and survey any such damages before repairs are begun. If Customer intends to assert a warranty Claim related to the Occurrence, Customer must provide a written description and notice of Claim to Lyman-Morse within 30 days of the Occurrence. Any Claim based on an Occurrence must be asserted in writing within twelve (12) months from the date of the service giving rise to the Occurrence. Failure to do so will result in release and waiver of the right to bring the Claim. Notices must be provided by certified mail, with a tracking number, to Lyman Morse Boat Building, Inc., 84 Knox St, Thomaston, ME 04861, Attn: Lyman-Morse President.
Choice of Law and Venue. These General Terms and Conditions and any dispute arising between Lyman-Morse and Customer shall be governed by the General Maritime Law of the United States and, to the extent not inconsistent therewith, by the laws of the State of Maine. Litigation with respect to any such dispute shall be brought exclusively in the U.S. District Court for the District of Maine, and any objection to personal jurisdiction or venue is hereby waived. Should the U.S. District Court for the District of Maine determine it lacks subject matter jurisdiction over any such dispute, the claim must then be filed in the Maine state court having subject jurisdiction over the claim.
Refusal; Termination. Lyman-Morse reserves the right to refuse or terminate services for any Customer or vessel at any time in its complete discretion. In the event of such refusal or termination, Customer agrees to promptly remove its vessel from Lyman-Morse property.
Survival of Terms and Conditions. All representations, warranties, terms, and conditions shall survive the expiration or termination of the contract or service relationship between Customer and Lyman-Morse to the extent necessary to protect the parties’ rights with respect to performance obligations arising prior to the date of termination.
No Waiver. Lyman-Morse’s failure to enforce any of its rights or Customer’s obligations set forth herein shall not be considered a waiver of those rights or obligations.
Integration, Acceptance, and Modification. These General Terms and Conditions, along with work orders, estimates, scope of work statements and all invoices provided by Lyman-Morse, set forth the entire understanding between Lyman-Morse and Customer with respect to the services provided by Lyman-Morse to Customer. Any modification of these General Terms and Conditions shall require written agreement of both Customer and Lyman-Morse. If Customer’s confirmation or any other document or communication provided to Lyman-Morse includes: (i) additional proposed terms, (ii) language stating that Customer’s terms supersede and govern for any reason, or (iii) any combination of (i) and (ii), any such additional terms described in (i) – (iii) will be deemed material alterations of these General Terms and Conditions. Absent a written agreement to the contrary, Lyman-Morse rejects any such material alterations and this clause shall be deemed sufficient notice of Lyman-Morse’s objection to such additional terms. Any such material alterations will be deemed void and unenforceable against Lyman-Morse without further notice.
Severability. If any of the provisions herein shall for any reason be held void or unenforceable, the remaining provisions shall remain in full force and effect.