These General Terms and Conditions govern the relationship, rights, and obligations between Lyman Morse Boatbuilding, Inc. (the “Company”) and its vessel storage and repair Customers (collectively, the “Parties,” or individually, “Party”). Any Customer placing its vessel alongside or on Company’s property shall be deemed to have consented to these General Terms and Conditions in consideration for the Company providing access to its property and for the price schedule that Company offers to Customers under these General Terms and Conditions. The following definitions apply to these General Terms and Conditions: (1) “Customer Group” shall mean Customer, its parent, affiliates, subcontractors, and any of its and their officers, directors, employees, agents, or invitees and to its or any of their property, including but not limited to the vessel; and (2) “Company Group” shall mean Company, its parent, affiliates, subcontractors, and any of its and their officers, directors, employees, agents, or invitees and to its or any of their property.
Compliance. Customer agrees to abide by such rules and regulations as Company may establish for the safety, benefit, and convenience of all vessel owners. Customer shall comply with all local, state and federal regulations while on or alongside Company property. Customer and its employees, agents, and invitees shall not engage in the overboard discharge of marine heads or septic, oily or contaminated bilge water, or any other contaminated substance. All waste and hazardous materials must be disposed of in accordance with local, state and federal regulations. Bottom sanding and scraping must be performed in conjunction with an approved collection system. No fires shall be permitted on Company property, including, but not limited to, docks and floats. No space heaters, light bulbs or other appliances shall be allowed without the prior written permission of Company. All debris left by or damage caused by Customer Group will be remedied by Company at Customer’s expense.
Payment. Customer acknowledges that it has received Company’s standard rate sheet and agrees to the pricing schedule set forth therein. Company shall send Customer an invoice monthly based on the hours of work completed. Customer shall pay Company within 30 days from the date of each invoice, or prior to the vessel’s launch or departure from Company’s facility, whichever occurs first. A fee of 1.5% per month, prorated daily, will be applied to accounts past due. Customer agrees to pay for all services, parts, labor and materials described therein and/or described on work orders and/or emails for all other incidental services, parts, supplies, and materials which are, in the sole opinion of Company, reasonably necessary to perform the work requested by Customer or its agents’ instructions, or as is reasonably necessary to accomplish such work. Customer understands that all work is performed and invoiced on a time and materials basis. Customer agrees that all prices, time, materials, and labor listed on a work order to perform the work are estimates only and subject to variance. Customer agrees that title to all consumable supplies used in connection with any repairs and/or modifications to the vessel are deemed to pass to Customer immediately prior to usage.
No vessels shall be launched or berthed at Company property until all outstanding bills have been paid or satisfactory arrangements have been made with Company. Customer’s violation of this requirement will result in a $500 per day fee in addition to Company’s standard rates for approved Customers, however, Company expressly reserves any and all other rights and remedies it may have for such unauthorized trespass or removal of vessels.
Vessel Care and Movement. Customer agrees Company shall have the right, but not the obligation, to relocate Customer’s vessel while it is located on or alongside Company property as Company may in its sole discretion deem appropriate. Customer further agrees that any charges associated with movement of the vessel shall be for Customer’s account and Customer shall pay same to Company. Subject to the terms and conditions herein, Customer shall at all times have the full care, custody and control of this vessel, except as specifically agreed to in writing by Company due to special circumstances. Company Group when on the said vessel or exercising its rights hereunder, shall be deemed to be the agent for Customer for such purpose. Customer releases Company from any liability as a warehouseman, liveryman, bailee or landlord, it being agreed that none of such relationships exist between the parties hereto.
Subcontract. All or part of any service requested may be subcontracted by the Company to others without notice. Any such subcontractor shall have the benefit of all defenses, exemptions and limitation of liability provided Company and shall be considered an independent contractor and not an agent, servant or employee of Company.
Warranty. Company will replace or repair at its facilities, without charge, workmanship or material furnished by Company (but not subcontractors) that proves to be defective under normal service conditions, provided Customer complies with the Notice of Claim clause. Customer waives any claims of defective workmanship or materials if it does not comply with such notice provision.
Liens. It is expressly agreed that all charges, costs and expenses of hauling, launching and transporting Customer’s vessel; all repairs to Customer’s vessel at any time; storage charges thereon; sale 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 Company, its successors and assigns. If Customer fails to pay the full amount owed to Company within thirty (30) days of the date said amount is due, Company shall have the right to resort to all rights and remedies granted under the provisions of either federal law or Maine law, including, but not limited to, the right of seizure and public or private sale. In the event of non-payment, Customer and its vessel in rem shall be liable for all costs relating to any seizure, including but not limited to attorney’s fees, costs, and custodia legis expenses, as well as the 1.5% per month service charge applicable to all amounts due in excess of 30 days. This clause may only be waived by Mr. Drew Lyman in writing, no other Company officer, employee, or agent is authorized to waive this clause. Any notice regarding authority to incur a lien on the vessel shall be provided in writing to Mr. Drew Lyman. Notice in any other manner or to any other individual shall not be effective.
Other Work. Customer Group may not perform work on Customer’s vessel or equipment while the vessel is located at or alongside Company property, unless prior written approval has been obtained from Company. Any Customer agent or invitee seeking to perform work for Customer and/or its vessel while at or alongside Company property shall provide proof of insurance in an amount not less than $1,000,000 combined single limit for bodily injury and property damage, to Company reflecting coverage for damage to Customer’s vessel, but also coverage for damage to Company Group and their property arising out of Customer’s work, regardless of cause. Customer is solely responsible for the liability of Customer Group, and Customer agrees to hold Company Group harmless, including costs of defense and attorneys’ fees, from any liabilities or damages arising from the work of Customer Group. All outside contractors or professional help must complete forms at Company’s office prior to commencement of work and must sign in and sign out at the office on a daily basis. Company reserves the right to charge Customer a fee for the right to have outside contractors work at Company’s facilities.
Insurance and Indemnity. Customer shall provide Company with certificates of insurance containing their (1) insurance company(ies) name(s), (2) policy number, (3) effective dates of coverage, and (4) coverage limits for all policies covering the vessel. Customer represents and warrants that it has procured hull, protection and indemnity, and pollution coverage for the vessel while being stored at or alongside Company’s property, and that such insurance shall be the sole source of recovery for Customer in the case of personal injury, damage, or loss to Customer Group. Such personal injury, damage, or loss shall include but not be limited to that caused by the sole or concurrent negligence, errors, or omissions of Company Group. Customer Group releases, holds harmless, and waives all rights of subrogation against Company Group for any and all claims for personal injury, damage, or loss to Customer Group, regardless of cause, including but not limited to that caused by Company Group’s sole or concurrent negligence, errors, or omissions (“Released Claims”). Should any member of Customer Group assert a Released Claim against Company Group, Customer shall defend and indemnify Company Group from such claim.
Limitation of Liability. Subject to the Indemnity and Insurance clause, Company Group’s liability for personal injury, damages, losses, fines, penalties, costs and expenses (“Claims”) arising from work performed, negligence, errors, or omissions related in any way to Company Group’s service for Customer or its vessel shall be limited to the total amount invoiced by Company to Customer in the 365 days prior to the event, action, or inaction alleged to have given rise to the claim. This limitation shall apply regardless of the cause of action or legal theory pled or asserted. Customer shall release, hold harmless, defend, and indemnify Company Group from all Claims in excess of this limitation amount.
Choice of Law and Venue. These General Terms and Conditions and any dispute arising between Company Group and Customer Group shall be governed by the General Maritime Law of the United States and, to the extent not inconsistent therewith, by the law of the State of Maine. Any claims between Company Group and Customer Group shall be brought exclusively in the U.S. District Court for the District of Maine, and each party waives any objection to personal jurisdiction or venue therein. Should the U.S. District Court for the District of Maine determine it lacks subject matter jurisdiction over any dispute, the claim should then be filed in the Maine state court having subject jurisdiction over the claim.
Notice of Claim. Should any damage or injury be suffered by or caused to a vessel allegedly due to Company Group’s error or omission, notice must be given to Company within 72 hours, as well as a reasonable opportunity to inspect and survey any such damages before repairs are begun. Written notice of intent to make a claim as a result of such injury or damage must be made within 30 days of such occurrence. Any action brought as a result of such injury or damages must be brought within one year of the date of the occurrence. Failure to give any notice and opportunity to inspect, if applicable, under this clause constitutes waiver of the right to bring an action as a result of any such occurrence.
Termination. Company reserves the right to revoke its agreement to service any Customer or vessel if Company considers it in its best interest. In the event a storage fee has been charged to Customer, a prorated rebate will be made to the Customer who must remove its vessel immediately on notice of termination.
Survival of Terms and Conditions. All representations, warranties, terms, and conditions shall survive the expiration or termination of the contract between Customer and Company to the full extent necessary for their enforcement and for the protection of the Party in whose favor they operate.
No Waiver. Company’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.
Modification. Any modification of these terms and conditions must be done by written agreement of both Customer and Company.
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.
Headings. The headings herein are included for the purpose of organizing this document so that it can be easily read and referenced. They are not intended to be used to, and shall not, vary or contradict the covenants that follow each heading.