(The Chartwell Law Offices LLC chartwelllaw.com)
TERMS AND CONDITIONS
The acceptance of any offer for goods or services provided by Guardian Mobile Marine LLC (GMM) is expressly limited to the terms and conditions set forth herein.
Unless otherwise agreed in writing by GMM, these Terms and Conditions shall override any terms and conditions stipulated, incorporated, referred to or implied by GMM, whether in writing or verbally.
- “Customer” means the person authorized to request GMM to undertake the Work.
- “GMM” means Guardian Mobile Marine LLC
- “Work” means the work and/or the goods and services that the Customer has requested GMM to undertake on behalf of the customer including (but not limited to) to the Vessel, Trailer, Engine or components thereof.
- “Vessel” means the boat, trailer, motor, equipment, or components of what the “Work” is being performed on.
ACCESS TO VESSEL
- Customer agrees to grant and make safe and easy access to the vessel for GMM to effectively perform the Work.
- Customer agrees to leave any access codes and key GMM will need to perform the Work.
CHANGES OR ADDITIONS TO THE WORK
- Any changes by the Customer to the work order must be accepted by both parties either in writing or electronically
PAYMENTS AND FEES
- Fee descriptions
- Trip charge fee (See above)
- Inspection/diagnostic fee (See above)
- Set Rate fee
- These fees are for performing a specific work agreed upon by both GMM and the Customer in advance. 50% is required up front and 50% upon completion. Occasionally GMM may discover that additional work may be required to achieve the results you expect. We will send you a written estimate for this extra work. Set rate fees are non-refundable unless the fees are applied to other work agreed upon to be performed during that same trip. Some parts may require a restocking fee from the vendor.
- Written Estimate (This is a price for performing work as written)
- Time Plus Material
- Hourly fees are billed at $100/hr in 15 minute increments.
- Time spent at the vessel location while “on the clock”
- Material/Parts costs
- Based on MSRP unless stated otherwise
- Weekend Work is billed at $125/hr in 15 minute increments.
- Emergency Work fee: Additional one-time fee
- Hourly fees are billed at $100/hr in 15 minute increments.
- Forms of payment
- Credit Card: This information will be given to GMM before mobilization.
- Cash: Only accepted if delivered to our office before mobilization.
- Checks: Only accepted if delivered to our office 3 days before mobilization
- Payment terms
- Unless otherwise agreed, payment shall be due upon receipt of invoice. Time is of the essence. ALL CHARGES MUST BE PAID IN FULL BEFORE VESSEL SHALL BE LAUNCHED BY ANY PARTY OR RETURNED TO CUSTOMER. Should Customer fail to make the appropriate payments when due, GMM may immediately cease any and all work on the Vessel until it receives payment pursuant to these terms and conditions. Any amount more than ten days past due shall be subject to a late fee of 5%. In addition, after 30 days, the GMM shall receive default interest of 1.5% per month on past due monies. Any grant(s) of extensions of time for payment will not diminish, waive, release or discharge the Vessel’s or Owner’s obligations under this Agreement. In the event GMM deems it necessary to retain counsel and/or a collection agency to collect any unpaid invoices, Customer agrees to pay GMM’s reasonable costs of collection, including, without limitation, lawyer fees, other collection costs and collection agency fees. Customer acknowledges and agrees the services provided by GMM entitle it to a maritime lien against the Vessel under the Federal Maritime Lien Act and other maritime laws, as well as state liens under Florida law. Owner agrees that the liens shall extend to and secure all amounts due GMM under this Agreement or at law and that no release of possession shall waive or prejudice such liens. If the vessel is held in storage the Customer agrees to pay for any and all fees associated with that storage.
- Customer represents he or she is the owner of the Vessel or has been authorized by the Owner of the Vessel to enter into this Agreement and will maintain marine liability insurance on the Vessel.
DELAYS TO WORK
- Delays that are within the Customer’s ability to control and affect GMM’s ability to perform the Work while GMM is at the vessel location, will be billed to the customer at GMM’s standard hourly rate in 15 minute increments.
CANCELLATION, REDUCTION OR MODIFICATION OF ORDERED WORK:
- In the event the Customer elects to cancel, reduce or modify the ordered work, Customer agrees to pay GMM in full for
- All work performed by GMM or its subcontractors
- All materials including any shipping or other related costs ordered by GMM (net of any available return credit) prior to the time GMM receives actual notice from Customer of the requested change.
RETURN OF GOODS
- In all circumstances the Parts Vendor reserves the right to refuse the return of goods which were originally shipped to GMM for the Work requested by the customer however GMM will make every effort to receive a refund for those returns from the vendor minus a 25% handling fee.
- Completion dates, if any, are approximate and are given by GMM in good faith, but are not guaranteed unless otherwise specifically agreed in writing.
- Customer acknowledges that boat repair work cannot always be accurately estimated in advance; that once work begins, unforeseen conditions or problems may arise; and other factors can affect estimated costs and completion dates. Customer accepts these realities and agrees any estimates furnished are to be used as guidelines only and are not binding on GMM.
- The Vessel and Owner shall defend, indemnify and hold harmless Seaview from all liability and expense, including without limitation cleanup costs, fines, penalties, civil damages, National Resource Damage Assessments, costs, and reasonable attorney’s fees, arising out of any environmental pollution attributable to vessel, unless such pollution is affirmatively proved to have been caused by the sole negligence of Seaview or its employees.
- Labor Warranty
- GMM is proud to stand behind a 90 day labor warranty. Warranty begins from the date the work was performed. This warranty is with the understanding that the work performed is based upon OUR recommendation for your repairs. In a circumstance where our recommendation is declined and work is performed to put a “patch” on a mechanical issue, that voids our labor warranty.
- Parts Warranty
- We honor the manufacturer’s warranty for parts, if that part has a warranty period associated with it. The PARTS warranty does not cover the cost of labor to remove and replace the defective part. Labor will be charged on PARTS warranties unless an arrangement is made with the manufacturer to compensate GMM for labor. For our part, GMM will handle all documentation of parts that you purchase and keep you informed of warranties and the periods of those warranties and also you will receive a copy of the parts invoice. Guardian Mobile Marine will also contact the manufacturer and arrange the warranty of those parts
LIMITATION OF LIABILITY
- GMM MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES OF WHATSOEVER NATURE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF SEAWORTHINESS OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER AGREES THE SOLE AND EXCLUSIVE REMEDY FOR ANY FAULTY OR DEFECTIVE REPAIRS, INSTALLATION OF DEFECTIVE MATERIALS, OR ANY OTHER BREACH SHALL BE STRICTLY LIMITED TO, AT GMM’S SOLE ELECTION, TO THE REPAIR, REPLACEMENT OR ADJUSTMENT OF THE DEFECTIVE WORK OR MATERIALS.
LIMITATION OF REMEDIES
- GMM SHALL NOT BE LIABLE IN CONTRACT OR AT LAW FOR ANY PERSONAL INJURY, DEATH, OR LOSS OR DAMAGE TO THE VESSEL OR TO ANY OTHER REAL OR PERSONAL PROPERTY, EXCEPT TO THE EXTENT SUCH LOSS OR DAMAGE WAS CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF GMM; PROVIDED, HOWEVER (1) IN NO EVENT SHALL GMM BE LIABLE FOR ANY ECONOMIC LOSS, CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOVER, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, CREW WAGES, SALVAGE OR TUG EXPENSES, DELAY, DEMURRAGE OR LOSS OF USE OF THE VESSEL; AND (2) IN NO EVENT SHALL GMM’S AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT OR AT LAW, TO ALL PARTIES IN INTEREST FOR ALL PERSONAL INJURY, DEATH, PROPERTY DAMAGES OR DELAYS EXCEED THE LESSER OF (1) $300,000.00 OR (2) THE SUM RECEIVED BY GMM UNDER THIS AGREEMENT.
- TIME LIMIT FOR FILING CLAIMS: NO CLAIM ARISING OUT OF THIS TRANSACTION, INCLUDING, BUT NOT LIMITED TO CONTRACTUAL CLAIMS FOR BREACH OF CONTRACT AND TORT CLAIMS BASED UPON ALLEGED NEGLIGENT REPAIR OR ON THE THEORIES OF STRICT LIABILITY OR OTHERWISE, SHALL BE VALID AS AGAINST GMM, UNLESS SAID CLAIM IS PRESENTED IN WRITING TO GMM WITHIN 90 DAYS OF THE EARLIER OF (1) THE DATE WORK WAS COMPLETED
MUTUAL HOLD HARMLESS:
- GMM shall defend, indemnify, and hold harmless Customer against any and all claims for payment for services submitted by GMM’s subcontractors or vendors arising under this contract. Customer shall defend, indemnify and hold harmless GMM, and its employees, subcontractors and agents from any claim, charge, liability or loss or damage for personal injury, occupational sickness, disease or death of any person, including without limitation any employee, subcontractor or agent of Customer, or for any property damage or loss of use thereof, which is in any way caused, in whole or part, by defects in the Vessel or by the negligence, breach of contract, or willful misconduct of Customer, including its employees, agents, and subcontractors; unless any such loss or damage is solely caused by GMM. Upon receipt of written request of GMM, Customer shall, at its own expense, immediately defend GMM in any arbitration, action, or other proceeding in which a claim covered by the foregoing indemnity provisions is alleged
- GMM shall not be in breach of this contract or otherwise liable for damages or delays in performance due to circumstances beyond its reasonable control, including without limitation, any fires, floods, storms and other acts of God, labor disruptions (including strikes, lockouts, and slowdowns), illness or incapacity of GMM employees, terrorism, war, shortages of materials, lack of transportation, inability to procure power, supplies or raw materials, severe weather conditions, substantial increase in price of power, raw materials or supplies, and failure of performance of subcontractors and/or suppliers for similar reasons. Failure of GMM to perform for these reasons aforesaid shall not be grounds for Customer’s cancellation of an order, but the performance date shall be extended accordingly.
- The occurrence of any of the following events shall constitute a default under this Agreement:
- Breach by either party of this Agreement
- Failure of Customer to pay when due any amounts owed under this agreement;
- Failure of Customer to provide access to the Vessel and keys or codes;
- Any act or omission by Customer, which causes any of the representations to be false.
- Any dispute arising out of this Agreement shall be determined by binding arbitration in Bradenton FL before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This paragraph shall not preclude parties from seeking provisional or enforcement remedies in aid of arbitration or preclude GMM from exercising any lien rights from any court having jurisdiction. The laws of the State of Florida shall govern, except the general maritime law will govern any assertion by GMM of its maritime lien rights. The prevailing party shall be entitled to an award of costs, including the fees of the arbitrator, prejudgment interest, and reasonable attorneys’ fees.
- In the event of a dispute or claim with respect to any item(s) of the agreed work, Customer shall pay promptly on a timely basis the agreed charges for all other items of the work not in dispute.
- Upon any default by the Customer, GMM in addition to all other remedies under maritime or state law, in its sole discretion, may:
- Suspend its performance or terminate this Agreement
- Impose storage charges on the Vessel at Seaview’s current storage rates;
- Retain possession of the Vessel until fully paid
- Pursue all remedies, including non-judicial sale of the Vessel, under state and/or maritime lien laws.