All work, contracts, service, storage and other undertakings by LYMAN MORSE BOATBUILDING, INC. are and shall be subject to the following terms and conditions (the “Terms”) which are hereby incorporated into all offers, estimates, specifications, work orders, purchase orders, service and storage contracts between the Company and each Customer
1. Scope. As used herein the term “Company” means LYMAN MORSE BOATBUILDING, INC. and each of its divisions, subsidiaries and affiliates performing services or delivering products to a Customer and specifically includes, without limitation, (a) Lyman Morse Fabrication, and (b) Lyman Morse Technologies, LLC, and their respective officers, directors, owners, managers, employees, subcontractors, agents, representatives and invitees. The term “Customer” means each person or entity (i) whose order for goods or services is accepted by the Company, or (ii) who receives goods or services from the Company, and in each case, their divisions, subsidiaries and affiliates and each of their respective officers, directors, owners, managers, employees, subcontractors, agents, representatives and invitees. These Terms apply to all such goods and services rendered by the Company, including future sales of goods and services ordered verbally or in writing by the Customer. Buyer is deemed to have accepted these Terms when placing an order with the Company, whether verbally or in writing. Any contradictory terms and conditions contained in a Customer’s written documentation (the “Contract”), including but not limited to its Purchase Order, whether or not known by the Company, shall not be binding on the Company unless expressly approved in writing by an officer of the Company. These Terms are hereby incorporated into the Contract.
2. Basis of the Sale. The Company shall provide goods and services and the Customer shall purchase and accept said goods and services pursuant to one or more written or verbal orders of the Customer (each, an “Order” and thereupon being a part of the Contract), subject to the Company’s acceptance. The Company’s employees and agents are not authorized to make any representations concerning the goods or services, unless confirmed by an officer of the Company in writing. The Customer hereby acknowledges and agrees that it has not relied upon and does not rely on, and waives any claim for breach of, any such representations or warranties which are not so confirmed. Any advice or recommendation given by the Company or its employees or agents to the Customer, including any advice as to the storage, application or use of the goods or services after delivery by the Company, which is not confirmed in writing by an officer of the Company, is followed or acted upon entirely at the Customer’s own risk, and accordingly, the Company shall not be liable for any such advice or recommendation which is not so confirmed. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, estimate, specifications, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
3. Orders and Specifications. The Customer shall be responsible to the Company for ensuring the accuracy and completeness of the terms of any order, including any applicable submitted specifications, and for providing the Company with any necessary or requested information relating to the goods or services within a sufficient time to enable the Company to perform its obligations under the Contract. If goods to be delivered by the Company are to be manufactured or any process is to be applied to the goods by the Company in accordance with a specification submitted by the Customer, the Customer shall indemnify the Company against all loss, damages, costs, and expenses, including reasonable attorney’s fees, incurred by the Company in connection with any claim for infringement of any patent, copyright, design, trademark , trade dress, or other intellectual property rights of any other person or entity which results from the Company’s use of such specification. No Order which has been accepted by the Company may be cancelled by the Customer, except with the Company’s written agreement.
4. Price of Goods and Services. The price of goods and services shall be the Company’s quoted price at the date of acceptance of the Order. Unless otherwise agreed in writing between the Customer and the Company, all prices are given by the Company on an “ex works” basis (that is, the Company shall place the goods at the disposal of the Customer at the Company’s premises and the Customer shall be responsible for all transportation, carriage, export and import clearance and insurance). Risk of loss shall pass to the Customer upon such delivery. All prices are exclusive of any applicable sales, value added or other tax, all of which the Customer may be additionally liable to pay directly or to the Company. If the Company discovers an error in the price of the goods or services which the Customer has ordered, the Company will inform the Customer and provide revised pricing as soon as practicable. The Customer may thereupon cancel its Order in writing within two (2) business days of being informed of an increase in the price of the goods or services, absent which the Customer shall be bound by the new price.
5. Terms of Payment. Unless otherwise agreed in writing, the Company shall be entitled to invoice the Customer for the price of goods or services, in whole or in part, on a monthly or periodic basis; but in any event upon tender of delivery of the goods or services. All tendered invoices shall be paid in full within thirty (30) days after receipt of the Company’s invoice (unless otherwise agreed in writing by the parties), notwithstanding that delivery or completion may not have taken place. Payment shall be made in United States Dollars. If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to: (a) cancel or suspend any further deliveries or services to the Customer; (b) allocate any payment made by the Customer to such of the goods and services as the Company may deem appropriate in its sole discretion; and, (c) the Customer hereby agrees to pay interest (both before and after any judgment) on the amount unpaid at the rate of One and One-Half Percent (1.5%) per month (18% per annum) until payment in full is made and received.
6. Delivery. Unless otherwise agreed in writing, delivery of the goods or services shall be made by the Company by tendering delivery to the Customer at the Company’s place of business. Any dates quoted for delivery are approximate only and the Company shall not be liable for any delay in delivery howsoever caused. Goods and services may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer. Time for delivery shall not be of the essence unless previously agreed by the Company in writing. Where the goods or services are to be delivered in installments, each delivery shall constitute a separate Order and the Company may invoice separately for each installment. Failure by the Company to deliver any one or more of the installments shall not entitle the Customer to treat the applicable Contract as a whole as repudiated. Any claim for shortage in delivery must be notified to the Company in writing within three (3) business days of the date of receipt of the goods or services by the Customer. Failure to provide such timely notice shall constitute acceptance of the goods or services in the manner and amount delivered.
7. Risk of Loss. Unless otherwise agreed in writing, risk of damage to or loss of the goods shall pass to the Customer upon tender of delivery to the Customer at the Company’s place of business. Notwithstanding delivery and the passing of risk in the goods, or any other provision of these Terms, the title in the goods shall not pass to the Customer until the Company has received cleared funds payment in full of the price of the goods and all other goods and services agreed to be provided by the Company to the Customer for which payment is then due. The Customer hereby irrevocably authorizes the Company or its representatives to enter upon the Customer’s premises where the goods are stored, or are thought to be stored, for the purpose of repossessing them and, if the Company so chooses, subsequent resale.
8. Insurance. All property of the Customer, whenever on or adjacent to the premises of, or in the custody of control of, the Company, shall be insured by the Customer at the Customer’s sole cost and expense, as is typical for the property subject hereto, but in any event Customer shall maintain (a) comprehensive casualty and property damage insurance on said property to the full insurable value thereof, and (b) general liability insurance, including environmental and pollution coverage, with limits of at least $1,000,000 per occurrence and $2,000,000 aggregate. All such policies shall include the Company, its officers, directors and employees as additional insureds on a primary and noncontributory basis, as their interests appear. Neither the Company, its officers, directors or employees shall be liable to the other for loss or damage caused by any risk covered by such insurance, and the parties waive all rights of subrogation in this regard. Customer hereby releases, holds harmless, and waives all rights of subrogation against Company for any and all claims for personal injury, damage, or loss to Customer, regardless of cause, including but not limited to that caused by the Company’s sole or concurrent negligence, errors, or omissions (“Released Claims”). Should any person or entity within the definition of Customer hereunder assert a Released Claim against the Company, the Customer shall defend and indemnify the Company from such claim.
9. Warranties and Liability. Except to the extent expressly reserved in these Terms and other Contract documentation executed by the Company, all warranties, conditions or other terms, express or implied, by statute or law, are disclaimed, excluded and waived to the fullest extent permitted by law, including without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement, or suitability. Any claim by the Customer which is based on any defect in the quantity, quality or condition of the goods or services, or their failure to correspond with specifications, shall (whether or not delivery is refused by the Customer) be notified to the Company in writing within seven (7) days from the date of delivery or, where the defect or failure was not apparent on reasonable inspection, within seven (7) days after discovery of the defect or failure. If delivery is not appropriately refused and the Customer does not timely notify the Company in writing of a claim, the Customer shall not be entitled to reject the goods or services and the Company shall have no liability for such defect or failure. If the Customer makes a valid and timely claim in writing to the Company, the Company shall be entitled to replace or substitute the goods or services (or the part in dispute) or, at the Company’s sole discretion, refund to the Customer the price of the goods or services (or a proportionate part of the price), and the Company shall have no further liability to the Customer. The Company shall be liable only for defects which appear, and for which claims are made, within twelve (12) months from the date of delivery. The Company shall not be liable to the Customer by reason of any representation, warranty, condition or other term, or any duty at law or in equity, or under the terms of the Contract, for any consequential, punitive, special, or indirect loss or damage (including without limitation loss of revenue or income, decrease in or limitation of any tax attribute, diminution in value, business interruption, cost of capital or loss of business reputation or opportunity), costs, expenses or other claims for consequential compensation whatsoever (whether caused by the negligence of the Company, its officers, employees or agents or otherwise) which arise out of or in connection with the delivery of goods or services or their use or resale by the Customer, or the care, custody or control by the Company of any property of the Customer.
11. Cancellation. The Company may suspend or terminate its obligations to Customer, without recourse, if the Customer files in or is placed in bankruptcy, makes any voluntary arrangement with its creditors, becomes subject to an administration, or goes into liquidation, or if any creditor takes possession of assets of or a receiver is appointed for Customer or its assets; or if Customer ceases to, or threatens to cease to, carry on business; or if the Company reasonably determines that any of the events mentioned above is likely to occur and notifies Customer accordingly. The foregoing shall be without prejudice to any and all other rights or remedies available to the Company. If goods or services have been delivered to Customer but not paid for, all amounts then due or accrued shall become due and payable immediately.
12. Lien Rights. Customer hereby grants to the Company, as collateral security for Customer’s performance hereunder, including, without limitation, Customer’s payment obligations, a mechanics and materialman’s lien and a possessory lien upon the goods in process or to be delivered, and upon the property of the Customer to which goods or services are provided, to the full extent allowed by applicable law in the jurisdiction where located and to the fullest extent allowed by federal and State law or other applicable rules, laws, regulations and practice, including without limitation, a security interest under the Uniform Commercial Code as in effect in the State of Maine, a maritime lien on pursuant to the Federal Maritime Lien Act, 46 U.S.C. §31341 et. seq., and a lien pursuant to the Maine Marine and Boatyard Storage Act, 10 M.R.S.A. §1381 et. seq. and a security interest in any vessel, her tackle, apparel, and furniture within the meaning of Maine law, 11 M.R.S.A. Sec. 9-102, et. seq., as applicable. Customer hereby appoints the Company as its true and lawful attorney-in-fact and agent for the purpose of filing or perfecting any such lien, said appointment being deemed coupled with an interest and irrevocable. Customer agrees to take any and all necessary steps to assist the Company in perfecting its lien as provided herein, including, but not limited to: (a) providing accurate information relating to the location of goods and other property of the Customer to which goods or services have been provided; (b) the name and address for any lender, insurance company or other party with an interest therein; and (c) such other information, documents and assistance as reasonably requested by the Company to perfect, protect, and enforce its rights hereunder.
13. Compliance with Laws. Customer shall be responsible for complying with any legislation, rules, regulations, orders, permits or licenses governing the importation or exportation of any goods identified in the Contract into the country of destination and for the payment of any duties, fees, assessments and taxes thereon. All sales of goods or services governed hereby shall at all times be subject to all applicable export control laws and regulations of the United States, including, but not limited to, U.S. Export Administration Regulations (15 C.F.R. § 730 et seq.) administered by the U.S. Commerce Department Bureau of Industry and Security. Customer covenants and agrees that no items, equipment, materials, services, technical data, technology, software or other technical information or assistance furnished by the Company, or any goods or products provided hereunder, shall be exported or re-exported by the Customer or its authorized transferees, if any, directly or indirectly, unless in accordance with said U.S. export laws and regulations. The obligations hereunder shall survive any expiration, termination or discharge of any other contractual obligations under the Contract.
14. Patriot Act Compliance. To the extent applicable, Customer warrants and represents to the Company that (a) the Customer has complied in all material respects with the International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001, which comprises Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the “Patriot Act”) and the regulations promulgated thereunder, and the rules and regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), and (b) neither the Customer nor any of its owners, agents, subsidiaries or affiliates are included on the List of Specially Designated Nationals and Blocked Persons maintained by the OFAC.
15. Notices. Any notice required or permitted to be given by either party to the other under the Contract shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to the Contract. Notwithstanding the foregoing, the Company shall be entitled to rely upon verbal communications and instructions of the Customer or its representatives in undertaking or performing any work or services provided hereunder or with respect to any Order.
16. Partial Invalidity. Each provision of these Terms shall be construed as separable and divisible from every other provision and the enforceability of any one provision shall not limit the enforceability or applicability, in whole or in part, of any other provision hereof. If a court of competent jurisdiction determines that any provision hereof, or the application of any provision to any person or circumstances, shall to any extent be invalid or unenforceable, said provision shall be construed by limiting and reducing the provision so as to be enforceable to the fullest extent possible under then applicable law. No waiver by the Company of any breach of these Terms by Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
17. Attorneys’ Fees. In the event a court action or other proceeding of any kind, arises concerning the enforcement, performance, meaning or interpretation of any provision of these Terms or any document executed in connection herewith or matter arising out of or related hereto, the prevailing party in such action or proceeding shall be awarded any and all costs and expenses incurred by the prevailing party in enforcing, defending or establishing its rights hereunder or thereunder, including, without limitation, court costs and reasonable attorneys and expert witness fees. In addition to the foregoing award of costs and fees, the prevailing party shall also be entitled to recover its reasonable attorneys’ fees incurred in any post judgment proceedings to collect or enforce any judgment. The provisions of this section shall survive any expiration, termination or discharge of any other contractual obligations under the Contract.
18. JURY TRIAL WAIVER. THE COMPANY AND THE CUSTOMER MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THE CONTRACT, ARISING OUT OF, UNDER OR IN CONNECTION WITH THE CONTRACT OR THE TRANSACTIONS CONTEMPLATED THEREUNDER, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE COMPANY AND THE CUSTOMER TO ENTER INTO THE TRANSACTIONS CONTEMPLATED HEREBY. Any dispute between the parties must be brought and litigated in the federal or state courts situate in the State of Maine and each party hereby irrevocably consents to the exclusive jurisdiction of and venue of the courts thereof. The obligations of the parties under this section shall survive any expiration, termination or discharge of any other contractual obligations under the Contract.
19. Interpretation and Applicable Law. The Contract shall be construed and interpreted in accordance with the laws of the State of Maine and applicable United States federal law. Notwithstanding the foregoing, the U.N. Convention on the International Sale of Goods shall not apply hereto. Where required for proper interpretation, words in the singular shall include the plural; the masculine gender shall include the neuter and the feminine, and vice versa. The terms “successors and assigns” shall include the heirs, administrators, executors, successors, and assigns, as applicable, of any party hereto.
20. Survival of Terms and Conditions. All representations, warranties, terms and conditions herein shall survive the expiration or termination of the Contract between Customer and the Company to the full extent necessary for their enforcement and for the protection of the party in whose favor they operate.