LIMITATION OF LIABILITY: DICKSON'S MARINE WEST, INC (DMW) SHALL NOT BE RESPONSIBLE FOR: (A) ANY LOSS OF OR DAMAGE TO VESSELS; OR (B) ANY LOSS OR DAMAGE TO ANY ARTICLES, EQUIPMENT OR PERSONAL PROPERTY; OR (C) PERSONAL INJURY OR DEATH OF OWNER, HIS EMPLOYEES, GUESTS, AGENTS OR REPRESENTATIVES, EVEN IF ANY SUCH LOSSES, INJURIES OR DEATHS ARE CAUSED BY THE FAULT OR NEGLIGENCE OF DMW. DMW WILL ONLY BE RESPONSIBLE IF ANY LOSSES, INJURIES OR DEATHS ARE SOLELY CAUSED BY DMW’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. DMW WILL NOT BE RESPONSIBLE FOR ANY CONSEQUENTIAL OR PUNITIVE DAMAGES.
The individual whose signature appears on this Purchase and Work Order is the Owner (OWNER) or has the Owner’s authority to enter into a binding contract for the repairs and modifications herein ordered to the described vessel (VESSEL) and its equipment.
2. Services, Parts and Materials
Owner agrees to pay for all services, parts and materials described herein and all other incidental services, parts, supplies and materials which are, in the opinion of Dickson's Marine West, Inc (DMW), reasonably necessary to perform the work specified by the Owner’s instructions. Owner authorizes the DMW to operate the Vessel for purpose of testing, inspection, delivery, docking and berthing, and when otherwise necessary, at Owner’s risk.
Unless otherwise agreed in writing prior to the commencement of the work: (i) any estimates or quotations rendered as to prices, time, material and labor required to perform the work are estimates only and are subject to variances; and (ii) the Owner shall be charged and shall pay for all time, parts, materials, and supplies at the DMW’s then prevailing rates (with respect to time) or prices (with respect to parts, materials and supplies).
Payment for materials and services is due and payable upon completion of the work, or within ten (10) days after the date of any statement rendered by the DMW, whichever is earlier. A late charge shall be added to any amounts not paid when due at the rate of ten percent (10%) per annum until paid.
5. Limitations of Remedy
The DMW’s sole responsibility for breach of any provision of this Agreement is, at its option: (a) to repair or replace equipment or parts, or to correct construction, repairs or installations that the DMW, at its sole discretion, deems defective through fault of the DMW, or (b) to remove at its expense, equipment that the DMW, at its sole discretion, deems defective through fault of the DMW and refund Owner all payments made for such equipment and associated labor.
6. Handling, Lifting and Mooring
The DMW assumes no liability or responsibility for the adequacy of the design nor the strength of any lifting lub, cleat or eye attached to the Vessel, to which the DMW reasonably attaches for handling, lifting or mooring.
7. Disclaimer of Express and Implied Warranties
Except as previously set forth herein, there are no warranties, or any affirmations of fact or promises by the DMW, with reference to equipment or service, or to merchantability, fitness, or otherwise, which extend beyond the face of this agreement. As to goods, owner acknowledges:
A. The goods are being sold on an “As Is” or with “All Faults” basis.
B. Should the goods prove defective following their purchase, as between the DMW and Owner, the Owner assumes all responsibility for the replacement, servicing or repair, and the DMW shall have no liability.
Owner hereby agrees to indemnify, hold harmless and defend the DMW, its officers, directors, agents, employees, representatives, and lessors, from all loss, liability, costs and expense, including attorney’s fees, arising from any claims, or litigation of any type or kind resulting from any death or any injury to persons or property related to rental of space or dockage, construction, repairs or installations, except such losses, damages, injury or death solely caused by the gross negligence or willful misconduct of DMW.
DMW reserves the right to require Owner and/or his agents, representatives or employees to provide a Certificate of Insurance confirming that they have sufficient liability insurance to satisfy any losses of any type which may occur while their vessel, its equipment and personal property are on the DMW’s premises, BEFORE any work is undertaken by them or by the DMW.
10. Attorneys’ fees
In the event the DMW commences legal action to enforce the terms or conditions of this agreement, or to collect damages as a result of a breach thereof, the DMW shall be entitled to recover all costs and reasonable attorneys’ fees incurred in such action.