TERMS AND CONDITIONS
- OWNER authorizes FHG MARINE, and FHG MARINE agrees, to perform the services described in one or more proposals, service orders, change orders or estimates authorized by OWNER. All such proposals, service orders, change orders or estimates shall be incorporated in, deemed to be a part of, and governed by, this Agreement.
- OWNER agrees to promptly pay all invoices by the payment date set forth in the service orders, change orders or estimates received from FHG MARINE. All charges must be paid by cash, wire transfer, or ACH in accordance with FHG MARINE’s payment terms, which are set forth in the service orders, change orders or If OWNER obtains FHG MARINE’s consent to pay by credit card, OWNER agrees to pay FHG MARINE an administrative fee for each credit card transaction and OWNER waives its right to instruct its credit card company to perform a charge back to FHG MARINE. All charges that become past due by five (5) days or more shall bear interest at the rate of eighteen percent (18%) per annum. FHG MARINE reserves the right to discontinue its services in the event of non-payment or delinquent payment. OWNER agrees that the Vessel shall not leave until full and final payment is received.
- OWNER is responsible for securing the Vessel and all other personal property on the Vessel during the term of this FHG MARINE shall not be liable for the care or protection of the Vessel (including its gear, equipment, and contents) or for any loss or damage of whatever kind or nature to the Vessel unless said loss or damage is the result of FHG MARINE’s gross negligence or willful misconduct. This Agreement does not create a bailment between OWNER and FHG MARINE. Owner assumes all responsibility for, and indemnifies and holds FHG MARINE harmless against any loss, cost, suit, or claim arising out of the use of any facility, including dock space, shop facility, boat yard, or paint facility, unless said loss, cost, suit, or claim arises from the gross negligence or willful misconduct of FHG MARINE. OWNER shall not activate, drive, or otherwise use the equipment or machinery prior to FHG MARINE’s completion of the services described in Section 1.
- FHG MARINE is liable for its own gross negligence and willful misconduct only. OWNER agrees FHG MARINE’s liability is limited to the amount OWNER paid for the services provided under this FHG MARINE is not jointly liable for damages caused in whole or in part by third parties. OWNER covenants not to sue FHG MARINE, its members, managers, employees and agents to recover any kind of damages, losses or expenses that are caused in whole or in part by either the OWNER, its employees, including the Vessel’s captain and crew, guests, agents, independent contractors and/or charterers. OWNER waives all claims and causes of action against FHG MARINE, its members, managers, employees and agents for damages caused in whole or in part by any windstorm, hurricane, flood, lightning strike, fire, or Acts of God.
- OWNER shall indemnify and hold harmless FHG MARINE, its members, managers, employees and agents from and against any and all claims and causes of action of every kind arising from any and all physical or emotional injuries, death and/or damages caused in whole or in part by the negligence or fault of OWNER (including by OWNER’s use of the equipment or machinery prior to FHG MARINE’s completion of its services), its employees, including the Vessel’s captain and crew, guests, agents, independent contractors and/or charterers.
- Under no circumstances shall FHG MARINE be liable for consequential or special damages such as: loss of use of the Vessel; loss of charter hire; the cost of chartering or hiring a replacement Vessel; diminution in the Vessel’s fair market value; demurrage charges; loss of pre-paid transportation expenses for the Vessel; captain and crew wages; captain and crew repatriation expenses; surveyor’s fees; expert witnesses; fees; salvage expenses; and sue and labor OWNER waives its right to recover consequential damages, special damages or punitive damages from FHG MARINE.
- OWNER warrants that it has and will maintain the following kinds of insurance at all times during the term of this Agreement:
(a) hull coverage for the fair market value of the Vessel; and (b) liability coverage, or protection and indemnity coverage, for personal injury, wrongful death and property damage claims with liability limits in an amount acceptable to FHG MARINE. OWNER’s liability or protection and indemnity insurance shall include, but not be limited to, coverage for Jones Act claims, seaman’s unseaworthiness claims, seaman’s maintenance and cure claims, Longshoreman and Harbor Workers’ Compensation Act claims, and tort claims. OWNER shall provide FHG MARINE with a certificate of insurance or other acceptable proof of OWNER’s insurance coverage. If OWNER fails to procure and maintain the insurance required by this Agreement, then OWNER assumes all duties and obligations covered by this paragraph. OWNER acknowledges and represents that, in consideration of the execution of this Agreement and as a material term hereof, OWNER shall not under any circumstances whatsoever subrogate or assign any claim or claims of any sort against FHG MARINE, its members, managing members, managers, employees and agents. OWNER acknowledges that any such subrogation or assignment shall be null and void.
- The Commercial Instruments and Maritime Liens Act, Title 46 U.S.C. § 31301 et seq. (the “Act”), provides FHG MARINE a preferred maritime lien against the Vessel, including its engines, tenders, personal watercraft, furniture, furnishings, fishing tackle and appurtenances for work, services and/or supplies (i.e., necessaries) provided to the Vessel. Under the Federal Maritime Law, FHG MARINE’s preferred maritime lien exists the moment this Agreement is FHG MARINE has the statutory right to sue the Vessel in rem to foreclose its preferred maritime lien. The in rem suit shall be filed in the federal district court that has jurisdiction over the area where the Vessel is physically located. The Act also allows FHG MARINE to sue OWNER to recover the amount due for necessaries provided to the Vessel. The Parties agree that FHG MARINE is entitled to recover all of its court costs, including custodial legis expenses, from the Vessel in rem and/or the OWNER in personam if FHG MARINE recovers a minimum of $1.00 on its claim. As a prevailing party, FHG MARINE shall also be entitled to recover its reasonable attorneys’ fees and litigation expenses from the Vessel under a Supplemental Admiralty Rule B attachment.
- OWNER shall reimburse FHG MARINE for any and all expenses, including attorneys’ fees, court costs, collection charges and fees incurred in enforcing any provision of this Agreement. OWNER’s obligation to pay FHG MARINE’s reasonable attorneys’ fees and court cost includes litigation at both the trial and appellate court.
- Unless otherwise provided in Paragraph 18, the exclusive venue for any action arising out of this Agreement or any alleged breach thereof or any action in any way tangential to the relationship arising under this Agreement shall be in a court of competent jurisdiction in Broward County, Florida. The Parties (a) consent to personal jurisdiction and venue in such court; (b) agree that such court shall have exclusive jurisdiction over any matters arising out of or related to this Agreement; (c) acknowledge and agree to accept service of process by registered or certified mail or the equivalent directed to their last known address; and, (d) waive any and all claims to the effect that the court constitutes an inconvenient forum. The Parties have equal bargaining power and have purposefully selected federal maritime law or Florida law to govern the terms of this Agreement.
- This Agreement shall be binding on the heirs, successors, representatives or assigns of the Parties This Agreement may not be assigned by OWNER without the express written consent of FHG MARINE. If FHG MARINE consents to the assignment of this Agreement, then the new Vessel owner must sign a new agreement with FHG MARINE.
- LIMITED WARRANTY AND DISCLAIMER OF FHG MARINE warrants to OWNER that its services will
be performed in a reasonably competent manner and will be reasonably free from defects in workmanship and materials for a period of 3 months after completion of the services. If any defects in workmanship and materials are discovered, OWNER shall promptly notify FHG MARINE in writing thereof. Upon the return of the defective work to FHG MARINE’s facility in Fort Lauderdale, Florida, FHG MARINE shall re-perform the defective portion of the service and will correct any damage to the Vessel and/or equipment upon which this service was performed at the option of FHG MARINE by either repairing or replacing any damaged part resulting from faulty service. The foregoing sentence sets forth FHG MARINE’s sole and exclusive obligation with respect to a warranty claim arising under this Service Agreement. OWNER shall pay all necessary travel expenses, including FHG MARINE’s travel expenses, incurred in connection with any repairs or service made in response to a warranty claim. It is specifically understood and agreed that no other warranties, express or implied, are or will be deemed to have been made by FHG MARINE with respect to services performed by FHG MARINE. The implied warranties of merchantability, workmanship and fitness are expressly disclaimed. ALL WARRANTIES MADE IN CONNECTION WITH FHG MARINE’S SERVICES ARE EXPRESSLY VOIDED AND DISCLAIMED IF OWNER ACTIVATES, DRIVES, OR OTHERWISE USES THE EQUIPMENT OR MACHINERY PRIOR TO THE COMPLETION OF FHG MARINE’S SERVICES.
- WAIVER OF JURY OWNER UNCONDITIONALLY WAIVES HIS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE DOCUMENTS, ANY DEALINGS BETWEEN OWNER AND FHG MARINE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTION AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN FHG MARINE AND OWNER. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THIS WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, ADDENDA OR MODIFICATIONS TO THIS AGREEMENT, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO TRIAL BY THE COURT.
- This Agreement must be signed by either OWNER or by the Vessel’s master (captain), manager or other person presumed to have authority to procure necessaries under Title 46 S.C. § 31341(a). All prior statements and representations made by FHG MARINE are merged into this Agreement so that it encompasses the full and complete understanding of the Parties. Amendments to this Agreement must be in writing and signed by the Parties. If a court declares that one or more of the terms or conditions of this Agreement are void or unenforceable for any reason, then the remaining terms and conditions shall survive and be fully enforceable. No act or forbearance by FHG MARINE shall be deemed a waiver of any terms or conditions of this Agreement. FHG MARINE’s pursuit of any one of the remedies set forth herein shall not preclude it from pursuing any of the other remedies provided under this Agreement or applicable law. FHG MARINE reserves the right to terminate this Agreement upon five (5) days’ notice.