Owner hereby authorizes Company to perform the repair, maintenance, and commissioning work described in the attached estimate or work order, together with any installation or use of materials reasonably necessary to complete that work (collectively, the “Work”). Owner grants Company, its employees, agents, and subcontractors permission to operate the Vessel for the purpose of launching, testing, inspection, sea trial, and delivery for the Work. Owner warrants that the Vessel is and will remain insured under a marine hull policy of insurance throughout the period during which Company is in possession of or performing Work on the Vessel.
Owner acknowledges that Owner has read the Terms and Conditions set forth below and, by authorizing this Work Order, agrees to be bound by them.
TERMS AND CONDITIONS
1. Authority. The individual signing or authorizing this Work Order on behalf of Owner warrants and represents that he or she is the owner of the Vessel or has been authorized by the owner to enter into this Work Order Acknowledgement (this “Agreement”) and to bind both the owner and the Vessel to its terms.
2. Change Orders and Additional Work. If Company determines during the course of the Work that additional or different work is necessary or advisable, Company will make reasonable efforts to contact Owner for authorization before proceeding. If the additional work is reasonably expected to increase the estimated cost by $500 or less, Owner hereby authorizes Company to proceed without further authorization. If Company is unable to reach Owner after reasonable efforts, Company may, at its option, suspend the Work and place the Vessel in a safe location at Owner’s expense, or proceed with the additional work at Owner’s expense. Owner authorizes Company to subcontract any portion of the Work that Company in its discretion determines is appropriate.
3. Payment; Mechanic’s Lien. All charges for the Work, parts, materials, and storage are due and payable upon completion of the Work and before redelivery of the Vessel. Company may refuse to release the Vessel until all amounts due are paid in full. All balances must be paid in full before the Vessel is launched. Finance charges of one and one-half percent (1.5%) per month (eighteen percent (18%) per annum), or the maximum rate permitted by law, whichever is less, will be applied to all balances over thirty (30) days past due. Owner expressly acknowledges and grants a mechanic’s lien in favor of Company on the Vessel and its engines, equipment, and appurtenances to secure all amounts owed for the Work, parts, materials, storage, and related charges. Company is authorized to apply accumulated charges to the credit card information provided by Owner. If payment in full is not received within thirty (30) days after Company has notified Owner that the Work is complete, Company may, in accordance with applicable law, commence lien sale proceedings, sell the Vessel at public auction, and apply the proceeds to the discharge of the lien and the costs of maintaining, storing, and selling the Vessel.
4. Limited Workmanship Warranty. Company warrants that the Work will be performed in a good and workmanlike manner and in accordance with good marine practice. This warranty is valid for thirty (30) days from the date the Vessel is redelivered to Owner. Owner’s sole and exclusive remedy under this warranty is repair, by Company at its facility, of any nonconforming portion of the Work. Owner is responsible for all costs of delivering the Vessel to Company’s facility for warranty repairs. This warranty does not cover (a) normal wear and tear, (b) damage caused by misuse, neglect, or accident, (c) parts or equipment supplied by Owner or by any third party, (d) work not performed by Company, or (e) damage caused by causes beyond Company’s reasonable control.
5. Warranty Disclaimer. Any warranty on parts and accessories is limited to the written warranty, if any, provided by the original manufacturer. EXCEPT FOR THE LIMITED WORKMANSHIP WARRANTY IN SECTION 4 ABOVE, COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Company neither assumes nor authorizes any other person to assume for it any liability for the Work or for parts and accessories supplied.
6. Risk of Loss. Owner bears the risk of loss for the Vessel and all personal property aboard the Vessel while the Vessel is in Company’s possession. Company is not liable for loss of or damage to the Vessel or personal property due to fire, theft, vandalism, weather, power outage, or any other cause, except to the extent caused by Company’s gross negligence or willful misconduct. Owner is strongly encouraged to remove all valuables from the Vessel before delivering it to Company.
7. Insurance. Owner shall maintain in full force and effect, throughout the period during which Company performs Work on the Vessel, marine hull insurance covering the full value of the Vessel. Owner shall name Company as an additional insured on such policy and shall obtain a waiver of subrogation in favor of Company. Owner shall provide Company with a Certificate of Insurance evidencing such coverage upon request and before any Work commences.
8. Limitation of Liability. COMPANY SHALL NOT BE LIABLE TO OWNER FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING LOSS OF USE OF THE VESSEL, LOST CHARTER OR RENTAL INCOME, LOST PROFITS, DIMINUTION IN VALUE, OR EXPENSES INCURRED FOR SUBSTITUTE TRANSPORTATION OR ACCOMMODATIONS. COMPANY’S TOTAL LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE BASIS OF LIABILITY, SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY OWNER TO COMPANY FOR THE SPECIFIC WORK GIVING RISE TO THE CLAIM.
9. Time Limit on Claims. Any claim arising out of or related to this Agreement, including any warranty claim under Section 4, must be presented to Company in writing within thirty (30) days after the Vessel is redelivered to Owner. Owner’s acceptance of redelivery constitutes Owner’s acknowledgment that the Work has been satisfactorily completed, except as to defects identified in a written claim delivered to Company within that 30-day period.
10. Indemnification. Owner shall indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, and subcontractors from all claims, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees, arising out of (a) Owner’s breach of this Agreement, (b) the negligence or willful misconduct of Owner or Owner’s guests, agents, or invitees, or (c) Owner’s failure to disclose any condition of the Vessel relevant to the Work. Further, Owner shall defend, indemnify, and hold harmless Company from all liability and expense, including cleanup costs, fines, penalties, civil damages, natural resource damage assessments, and reasonable attorneys’ fees, arising out of any environmental pollution attributable to the Vessel, except to the extent affirmatively proved to have been caused by the sole gross negligence of Company.
11. Owner Disclosures. Owner shall disclose to Company all known defects, damage, or unusual conditions of the Vessel that may affect the Work or the safety of the Work. Owner warrants that, except for the conditions disclosed in writing or set forth in the work order, the Vessel is seaworthy and in safe condition for the Work to be performed.
12. Parts and Returns. Special-order parts are neither cancelable nor returnable. All electrical parts are non-returnable. Other parts are subject to a twenty-five percent (25%) restocking fee and may be returned only if in original packaging and in sellable condition within seven (7) days of purchase. Special-order parts must be paid in full at the time the project is authorized or when the parts are ordered, including tax and freight.
13. Storage and Pickup. Owner shall pick up the Vessel within forty-eight (48) hours after Company has notified Owner that the Work is complete. Vessels not picked up within that 48-hour period are subject to daily storage or dockage fees at the Company’s then-prevailing rates. For Vessels owned by slip holders at the Company’s facility, the Company may move the Vessel to its assigned slip and continue charging the applicable slip rate.
14. Abandoned Property. Any item removed from the Vessel during the Work and not collected by Owner within twenty (20) days after Company has notified Owner that the Work is complete is deemed abandoned. Owner relinquishes all interest in such items, and Company may dispose of them at its discretion without further notice or accounting to Owner.
15. Attorneys’ Fees. If Company retains an attorney to collect amounts owed by Owner or to enforce this Agreement, Owner shall pay all reasonable attorneys’ fees and costs incurred by Company, in addition to all other amounts due.
16. Force Majeure. Company is not liable for any delay or failure to perform the Work caused by events beyond its reasonable control, including acts of God, severe weather, fire, flood, labor disputes, government orders, supply shortages, transportation delays, or pandemics. Company’s performance obligations are suspended for the duration of any such event.
17. Governing Law. This Agreement is governed by the general maritime law of the United States, supplemented by the laws of the state in which the Company facility identified above is located, without regard to its conflict-of-laws principles.
18. Jury Trial Waiver. EACH PARTY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE WORK, OR ANY COURSE OF DEALING BETWEEN THE PARTIES. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO THIS AGREEMENT AND IS MADE KNOWINGLY, VOLUNTARILY, AND AFTER THE OPPORTUNITY TO CONSULT WITH COUNSEL.
STATE-SPECIFIC ADDENDA
The following provisions modify or supplement the Terms and Conditions above based on the state in which the Company facility identified at the top of this Agreement is located. Where a state-specific provision conflicts with the Terms and Conditions above, the state-specific provision controls for Work performed at a Company facility located in that state. Where a state is not listed below, no state-specific modifications apply, and the Terms and Conditions above govern in their entirety.
Florida
(a) Initialing of Specified Provisions. Owner shall separately initial Sections 8 (Limitation of Liability), 10(Indemnification), and 18 (Jury Trial Waiver). Florida courts apply heightened scrutiny to exculpatory and indemnification provisions and to waivers of fundamental rights, and separate initialing is a material element of Owner’s assent to those provisions in Florida.
(b) Abandoned Vessels. Notwithstanding Section 14, the disposition of any Vessel deemed abandoned at a Florida facility shall follow the procedures and notice periods required by Florida Statutes §§ 327.4108 and 328.17, regardless of any shorter period stated in this Agreement.
(c) FDUTPA. Nothing in this Agreement waives any rights Owner may have under the Florida Deceptive and Unfair Trade Practices Act, Florida Statutes § 501.201 et seq. (“FDUTPA”), and the limitations of liability in Section 8 do not apply to claims under FDUTPA to the extent waiver of those limitations is prohibited by law.
(d) Mechanic’s Lien Notice. Foreclosure of any lien against a Vessel located in Florida shall be in accordance with Florida Statutes § 713.58 (or any successor statute), including the statutory notice requirements.
Alabama
Mechanic’s Lien. Foreclosure of any lien against a Vessel located in Alabama shall be in accordance with Alabama’s applicable lien statutes, including any required notice and sale procedures.
Texas
(a) Finance Charge Disclosure. The finance charge stated in Section 3 is enforceable in Texas pursuant to Texas Finance Code Chapter 302 to the extent disclosed in this Agreement, and the disclosure in Section 3 is intended to satisfy the disclosure requirements of that chapter.
(b) Texas DTPA. Nothing in this Agreement waives any rights Owner may have under the Texas Deceptive Trade Practices–Consumer Protection Act, Texas Business and Commerce Code § 17.41 et seq. (the “DTPA”), and the limitations of liability in Section 8 do not apply to DTPA claims to the extent waiver is prohibited by law.
Wisconsin
(a) Wisconsin Consumer Act. If the Work constitutes a consumer transaction within the meaning of the Wisconsin Consumer Act, Wisconsin Statutes Chapters 421 through 427, the finance charge in Section 3and any other charges imposed under this Agreement apply only to the extent permitted by, and as disclosed in accordance with, the Wisconsin Consumer Act.
(b) Reservation of Rights. Nothing in this Agreement waives any rights Owner may have under the Wisconsin Consumer Act or under Wisconsin Statutes § 100.18 (Fraudulent Representations) to the extent waiver is prohibited by law.
Michigan
(a) Mechanic’s Lien. Foreclosure of any lien against a Vessel located in Michigan shall be in accordance with the applicable Michigan lien statutes, including the notice and sale procedures set forth therein.
(b) Abandoned Vessels. Disposition of any Vessel deemed abandoned at a Michigan facility shall follow the procedures and notice periods required by Michigan law, regardless of any shorter period stated in this Agreement.
Maryland
Mechanic’s Lien Notice. Foreclosure of any lien against a Vessel located in Maryland shall be in accordance with Maryland Commercial Law Article § 16-202 (or any successor statute), including the statutory notice and sale procedures.
New York
(a) Indemnification Limitation. Section 10 (Indemnification) shall not be construed to indemnify Company against liability caused by Company’s own negligence, in accordance with New York General Obligations Law § 5-321.
(b) Mechanic’s Lien. Foreclosure of any lien against a Vessel located in New York shall be in accordance with New York Lien Law § 184 (or any successor statute), including the statutory notice and sale procedures.
(c) Initialing of Jury Trial Waiver. Owner shall separately initial Section 18 (Jury Trial Waiver). Initialing is a material element of Owner’s knowing and voluntary waiver of the right to a jury trial under New York Civil Practice Law and Rules § 4102.
Connecticut
(a) CUTPA. Nothing in this Agreement waives any rights Owner may have under the Connecticut Unfair Trade Practices Act, Connecticut General Statutes § 42-110a et seq. (“CUTPA”), and the limitations of liability in Section 8 do not apply to CUTPA claims to the extent waiver is prohibited by law.
Massachusetts
(a) Chapter 93A. Nothing in this Agreement waives any rights Owner may have under Massachusetts General Laws Chapter 93A (Regulation of Business Practices for Consumers Protection) (“Chapter 93A”), and the limitations of liability in Section 8 do not apply to Chapter 93A claims to the extent waiver is prohibited by law.
Vermont
Vermont Consumer Protection Act. Nothing in this Agreement waives any rights Owner may have under the Vermont Consumer Protection Act, 9 V.S.A. § 2451 et seq., and the limitations of liability in Section 8do not apply to claims under that Act to the extent waiver is prohibited by law.