Service Contract Terms
Boland Marine & Industrial, LLC (hereafter “We,” “us” or “our”), expressly conditions any agreement for vessel repair and other services on the terms stated herein (which can also be found on our website at https://bolandmarine.com Contract Terms and Conditions), all of which are deemed material to the formation of this contract. The terms and conditions herein cannot be altered, amended or changed except by written agreement signed by us. Written acceptance containing inconsistent terms is deemed ineffective as an acceptance. Any document or agreement which purports to alter or increase our liability or affect our rights beyond that stated herein is expressly rejected by us and does not form a part of this contract.
We are not liable for any loss or damage resulting from: (i) strikes or labor difficulties; (ii) conditions or defects, apparent or latent, aboard any vessel or any appurtenance thereof including mooring lines; (iii) vessel mooring, adjustment of mooring lines or mooring line configuration; (iv) any force majeure, which for purposes of this clause is deemed to include wind or rain of tropical depression force or greater.
We are not liable for defective workmanship or material, whether latent or otherwise, or for damage to any vessel or for any loss or damage sustained by its owners, charterers, managers, operators, underwriters or other persons/parties, directly or indirectly, whether in contract, tort, equity, statutory or at law, without regard to the cause(s) thereof, unless the same is caused by the sole negligence, sole fault or sole strict liability of our own payroll employee(s), which sole negligence, sole fault or sole strict liability shall not be presumed but must be affirmatively proven.
We are not liable for any personal injury, death, property damage or loss suffered or sustained by the parties hereto or any third-person/party, without regard to the cause(s) thereof, unless the same is caused by the sole negligence, sole fault or sole strict liability of our own payroll employee(s), which sole negligence, sole fault or sole strict liability shall not be presumed but must be affirmatively proven.
Our liability, if any, for any claim, demand or cause of action asserted against us is strictly limited to the costs of repair, correction or replacement thereof AND IN NO EVENT SHALL WE BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGE OR LOSS WHATSOEVER INCLUDING BUT WITHOUT LIMITATION DELAY, DETENTION, DEMURRAGE, LOSS OF PROFITS, LOSS OF BUSINESS OPPURTUNITIES, TOWAGE OR PILOTAGE. In no event shall our liability for any claim, demand, cause of action or theory of recovery exceed the aggregate the sum of $300,000.00. We shall be discharged from all liability for defective workmanship or material or for any loss, damage or claim (including personal injury or death) under any theory of liability whatsoever, without regard to the cause(s) thereof, unless a written claim for same is presented to us within sixty days of the completion of work performed by us and litigation is commenced in a court of proper jurisdiction and venue within one year of completion of work performed by us.
THE FOREGOING IS IN LIEU OF ALL WARRANTIES AND LIABILITIES EXPRESSED OR IMPLIED INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS AND WORKMANLIKE PERFORMANCE OR SERVICE.
The vessel owners, charterers, managers, operators, and other parties in interest, shall release, defend, indemnify and hold us harmless from all claims, demands, causes of action, theories of recovery and liability of any sort whatsoever (including our liability or contractual obligations to third parties), without regard to the cause(s) thereof, which in any way arises out of or relates to the above-named vessel, this contract or the work and services hereunder, and which defense, indemnity and hold harmless obligations expressly include acts or omissions of our own negligence, fault or strict liability, whether gross, concurrent or joint, active or passive. In no event shall we be liable for the costs of defense, including attorney’s fees, for any legal action asserted against the vessel owners, managers, operators, agents, charterers, underwriters or other parties in interest whether commenced by our payroll employees, subcontractors, subcontractors’ employees, invitees or other persons/parties. The terms “we,” “us” and “our” used throughout this contract includes our members, mangers, agents, officers, employees, partners, co-contractors, joint-venturers, agents, subcontractors, consultants, insurers, subrogees, invitees and indemnitees.
As security for the payment of all repairs, other services, costs, accrued interest and reasonable attorney’s, the vessel owner, operator, manager, charterer or agent, acting herein through its undersigned representative, hereby grants a security interest and maritime lien on the above-named vessel, its appurtenances and other tangible and intangible assets, and further irrevocably and unconditionally waives any right, protection or sovereign immunity from any legal proceedings, including the execution of any judgment, order, warrant, writ, foreclosure, enforcement of lien rights or security interests, or any other legal action such as the pre-judgment in rem arrest, in personam attachment or seizure of the above-named vessel, its appurtenances and other tangible or intangible assets. In the event the invoice(s) for our work and services hereunder are not paid when due or in the event legal proceedings are instituted to enforce any of the terms or obligations herein, the vessel owner, operator, manager and charterer shall be liable for all legal costs including our litigation expenses and reasonable attorney’s fees. Interest for any unpaid invoice shall accrue at a rate of 1.5% per month (before and after rendition of any judgment) until fully paid. Unless otherwise agreed by us, all invoices are due upon presentment of same. Additional charges at the stipulated rate of $5000 per day will be assessed, not as a penalty, for vessels remaining at our facility after the conclusion of repairs or work performed by us.
Pursuant to the International Management Code for the Safe Operation of Ships and for Pollution Prevention (“ISM Code”), resolution A.741(18) specifically ISM Code 1.4 and ISM Code 8.3, we understand that the vessel(s) upon which we are to perform work is/are furnished, with among other things, a shipboard rescue team familiar with the vessel(s), trained in confined space rescue, and available to provide rescue and first response emergency first aid assistance to our employees and contractors in the event of an accident. We shall contact the officer-on-deck should we need emergency assistance unless we are notified of an alternative contact person. We assume, unless we are otherwise notified by you, that we may rely upon you to provide any requested rescue and/or first aid service and that we should request such service by contacting the officer-on-deck.
If any provision above is deemed void or unenforceable by a court of competent jurisdiction, then such provision(s) shall be stricken, and this contract shall be reformed to replace such stricken provision(s) with a valid and enforceable provision(s) that comes as close as possible to expressing the intention of the stricken provision(s); all remaining provisions above shall continue to be valid and binding. The terms set forth above supersede and replace all prior estimates or other agreements between the parties, whether written or oral.