Lyman Morse Boatbuilding, Inc. -- General Terms and Conditions

These General Terms and Conditions govern the relationship, rights, and obligations between Lyman Morse Boatbuilding, Inc. (the “Company”) and the owner of any vessel requesting storage and repair services from Company (“Customer”) (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.  

Definitions. 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 owners, members, shareholders, officers, directors, employees, agents, other subcontractors, other suppliers, or invitees and its or any of their property, including but not limited to the vessel, (but excluding members of Company Group); and (2) “Company Group” shall mean Company, its parent, affiliates, subcontractors, suppliers, and any of its and their owners, members, shareholders, officers, directors, employees, agents, and 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 laws, statutes, and regulations (the “Law”) while on or alongside Company property. Customer Group 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 the Law. 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 bi-weekly 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 leave 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 as liquidated damages, and not as a penalty, in addition to Company’s standard rates for approved Customers. It is understood that the resultant damages of any such violation would be difficult to ascertain with certainty but that the amount stipulated herein is a good faith reasonable estimate of the damages Company would suffer were these conditions to be breached. 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.

Limited Warranty.  Subject to the Limitation of Liability clause, Company warrants to Customer that Company’s maintenance 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 Notice of Claim clause. The liability of Company under this Limited Warranty shall not in any case extend beyond repair or replacement of the defects.  Any such defects shall be remedied or replacements made by Company at Company’s shipyard in Thomaston, Maine.  If Company and Customer agree that the replacements or repairs under this clause cannot be conveniently made at Company’s shipyard, subject to prior written approval by Company’s President, Customer may have the replacements or repairs carried out elsewhere; in such case, Company 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 Company’s shipyard, and shall be subject always to the Limitation of Liability clause.  Company’s Limited Warranty shall not apply to materials, machinery, goods, accessories, and equipment unless the foregoing is manufactured by Company. 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 Company to Customer upon re-delivery of the vessel.  Company and Customer agree that Company shall not be responsible for the guaranties and/or warranties on any of the materials, machinery, goods, equipment or accessories contained on the vessel, but Company will assist Customer in pursuing the original materials, machinery, goods, equipment or accessories manufacturer’s warranties by assisting in Customer’s assertion of claims against third party warranty providers. EXCEPT AS SET FORTH IN THIS CLAUSE, COMPANY 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 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 the Company’s President 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 the Company’s President.  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, invitee, other subcontractor or other supplier 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 that required by the the Company’s Contractor Agreement for bodily injury and property damage, to Company reflecting coverage for damage to Customer’s vessel, but also coverage for damage to Company Group as an additional assured and their property arising out of Customer Group’s work, regardless of cause. Customer is responsible for the liability of Customer Group, and Customer agrees to release, defend, indemnify, and hold Company Group harmless, including costs of defense and attorneys’ fees, from any liabilities or damages arising from or relating to the work of Customer Group.  All members of Customer Group 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 represents and warrants that it has procured hull, protection and indemnity, and pollution insurance 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 wrongful death, personal injury, damage, or loss to Customer Group, excluding property damage or loss covered by the Limited Warranty, above.  Company Group shall be named as an additional assured on Customer’s insurance policies and with a waiver of subrogation against Company Group.  Customer shall provide Company with certificates of insurance containing their (1) insurance company(ies) name(s), (2) policy number, (3) effective dates of coverage, (4) coverage limits for all policies, and (5) compliance with the conditions of this clause.  Customer releases, holds harmless, and waives all rights of subrogation against Company Group for any and all claims, causes of action, liabilities, and expenses for personal injury, wrongful death, 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, 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 any member of Customer Group assert a Released Claim against Company Group, Customer shall defend and indemnify Company Group from such Released Claim.

Limitation of Liability.  Subject to the Insurance and Indemnity clause, Company Group’s liability for wrongful death, personal injury, damages, losses, fines, penalties, costs and expenses arising from or relating to work performed, sole or concurrent negligence, errors, omissions, breach of contract, or other legal fault arising from or related in any way to Company Group’s service for Customer or its vessel (“Claims,” or individually a “Claim”) 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, including but not limited to breaches of the Limited Warranty.  Customer shall release, hold harmless, defend, and indemnify Company Group from all Claims in excess of this limitation amount. 

Notice of Claim. Notice must be given to Company within 72 hours of Customer Group’s first knowledge of a potential Claim (an “Occurrence”), as well as a reasonable opportunity for Company to inspect and survey any such damages before repairs are begun. Written notice of intent to assert a Claim must be made to Company within 30 days of an Occurrence. Any Claim asserted must be brought within one year of the date of the Occurrence and failure to do so will result in release and waiver of the right to bring the Claim. Failure to give any notice and an opportunity to inspect, if applicable, under this clause constitutes release and waiver of the right to bring the Claim.  Notices shall be provided by certified mail with a tracking number to Company at:

 

Lyman Morse Boat Building, Inc.

84 Knox St

Thomaston, ME 04861

Attn: Company President

Copy to: Ron Lone at Rlone@lymanmorse.com

 

Choice of Law and Venue.  These General Terms and Conditions and any dispute arising between members of 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 members of Company Group and Customer Group shall be brought exclusively in the U.S. District Court for the District of Maine, and any objection to personal jurisdiction or venue therein is waived.  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.

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.

Integration, Acceptance, and Modification.  These General Terms and Conditions, along with Company’s standard rate sheet and any scope of work provided by Company sets forth the entire understanding between Company and Customer.  Regardless of whether Customer signs this document or provides any other written or verbal confirmation or acceptance of these General Terms and Condition, 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. Any modification of these General Terms and Conditions must be done by written agreement of both Customer and Company. If Customer’s confirmation or any other document or communication it sends to Company 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, Company rejects any such material alterations and this clause shall be deemed sufficient notice of Company’s objection to such additional terms under applicable law. Any such material alterations will be deemed errant, void, and unenforceable against Company without further notice. If there is any conflict between these General Terms and Conditions and any Customer’s confirmation or any other document or communication it sends to Company, then these General Terms and Conditions will be deemed to supersede and govern.

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.