Standard Terms and Conditions
These terms and condition represent the final and complete agreement of the parties, and no modification shall be binding upon Parker Yacht Management L.L.C. (“PYM”) unless made in writing and signed and approved by an officer of PYM. No modification of these terms shall be deemed made or accepted by PYM shipping goods or performing services following receipt of a purchase order or other documents containing terms and conditions additional to or in conflict with the terms and conditions herein. PYM does not agree to the accident, indemnity, and insurance provisions, if any, contained in the buyer's or customer's invitation or specifications, and in such cases PYM accepts only such liability as is imposed upon PYM by law and as limited by this contract. Receipt of goods or services by the buyer or customer shall be deemed conclusive proof of irrevocable acceptance of these terms and of the conformity of the goods or services provided; similarly these terms and conditions shall be deemed irrevocably accepted upon commencement of work by PYM.
PYM contracts for furnishing parts and services solely on the basis of the insured limited liabilities and specific warranties set forth below. PYM shall not be liable for any injury or death resulting from its provision of parts or services, and the purchaser or customer agrees to indemnify, defend and hold PYM harmless for any such claims brought against PYM by or on behalf of any person other than a PYM employee. When PYM provides parts or services to any vessel, PYM shall not be liable, directly or indirectly, in contract, tort or otherwise, to the vessel's owners, charterers, underwriters, lienholders or other party in interest for any damages to such vessel or to its appurtenances, cargo, equipment or moveable stores, or for any consequence thereof, unless such damage is caused solely by PYM's gross negligence or intentional tort, and in no event shall PYM's aggregate liability under this contract (with the exception of the specific warranty as set forth in "WARRANTY" below) exceed the sum of $50,000.00 or the value of the vessel, whichever figure is the lesser. In no event shall PYM be liable for any consequential or special damages including but without limitation, for faulty or negligent design or manufacture, delay, loss of revenue, detention, wharfage, demurrage, tug expense, pilotage, crew wages, salvage or loss of use. For all sales or services provided, whether vessel related or non-vessel related, PYM shall not be liable for incidental, special or consequential damages or losses arising directly or indirectly from the purchase and sale of goods or provision of services, or for any other cause, and PYM's sole liability shall be as set forth under "WARRANTY" below. The buyer or customer agrees to indemnify, defend and hold PYM harmless with respect to all claims and liabilities exceeding the amounts herein stated.
PYM shall not be liable for any loss, damage or delay caused by strikes, labor difficulties, accidents, delays in delivery of materials, acts of God, war, restraint of princes, or causes of any kind beyond PYM's control (whether or not foreseeable), including, but not limited to, tropical storms, hurricanes, lightning or rain.
PYM warrants that its parts and services are provided in accordance with industry standards. Buyer or customer agree that the sole remedy for breach of any warranty, express or implied shall be limited, at PYM sole discretion, to the replacement of parts, repair of parts, return or crediting of purchase price. PYM makes no warranty and specifically disclaims all liability for design of any items supplied. THE FOREGOING WARRANTY IS NON ASSIGNABLE AND IS IN LIEU OF AND SPECIFICALLY EXCLUDES ALL OTHER WARRANTIES NOT ACTUALLY SET FORTH HEREIN, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS OR THOSE IMPLIED BY THE COMMON LAW OF BAILOR AND BAILEE. No agent or employee of PYM has authority to bind PYM to any other or expanded warranty, and any representation to that effect shall not be deemed to become a part of this contract and shall be unenforceable. The specific warranty provided by this section shall be deemed expired and all rights of the buyer or customer irrevocably waived unless the claimed defect is submitted to PYM in writing within thirty days of receipt of the relevant part or service (or the redelivery of the vessel, whichever occurs first). This period shall govern whether the alleged defect is latent or patent and shall not be deemed to be tolled or to arise at any future time as a result of the discovery of a latent defect. All warranties are contingent upon, and do not arise until, full payment is received by PYM, and the provision of repairs or replacement of parts by PYM shall not be deemed a waiver of this provision.
FORUM AND CHOICE OF LAW:
This contract shall be deemed to have been executed and performed within in the State of Florida, and shall be interpreted and construed in accordance with and subject to the federal maritime law of the United States (excluding its conflict of law rules) to the exclusion of the laws of any other state or country. The UN Convention on Contracts for the International Sale of Goods shall not apply. The Florida UCC shall not apply. The prevailing party in any legal action shall be awarded reasonable attorneys fees and costs. Any dispute arising under or in connection with this contract shall be litigated before either a federal court located in the Southern District of Florida, or (and only in the case where admiralty or diversity jurisdiction does not exist in federal court), a state court of competent jurisdiction located in the Broward County, Florida, to the exclusion of any other forum, and buyer or customer hereby irrevocably consents to the jurisdiction of and venue in such court. The parties consent to service of process by certified mail, certified international mail, fax, e mail, Federal Express or DHL courier service at any of the addresses or other contact information set forth in the PYM proposal, estimate, invoice, quotation, purchase order or elsewhere in this contract, and irrevocably waive and right to personal service of these documents.
PAYMENT AND PRICE:
Prices quoted and product availability stated are valid for ten days only unless designated as firm for a specific other period in writing by an officer of PYM. Payment in all cases is net upon receipt of invoice, 1.5% per month to be added to the invoice amount if full payment is not received by PYM within ten days of presentation of the invoice. PYM may place any account not paid within ten days into the hands of attorneys for collection and the buyer or customer agrees to pay the reasonable fees and costs of the attorneys, without regard to whether suit is filed. All payments must be made in Florida at 757 SE 17th Street, Suite 422, Ft. Lauderdale, FL. 33316. If payment by wire is agreed, then all wires are to be deemed payments made in Florida. For payment for work done on or materials furnished to any vessel, whether authorized orally, or by letter, or written contract, and whether PYM is the general contractor or a subcontractor, PYM looks to both vessel and owner.
The vessel, its owners, charterers, underwriters, lienholders, and all parties in interest, shall indemnify and hold PYM harmless from all liability arising under any state or federal air or water quality statute or regulation unless the liability shall arise solely from the gross negligence or intentional tort of PYM's own employees. If required under US law, Owners, customers and buyers and other parties in interest warrant that a valid and current U.S. Coast Guard Certificate of Financial Responsibility (Water Pollution) (Form CG 5358 10) shall be kept in force at all times while PYM is furnishing repairs, parts or services. BUYER AND CUSTOMER'S RIGHT TO PURCHASE FURTHER WARRANTIES: Different or more extensive liabilities will be accepted if an agreement in writing stating the nature and extent thereof is entered into before work is commenced by PYM, and if the price is adjusted to include the cost of appropriate additional insurance. The terms contained in this contract or as set forth by an addendum thereto shall in no way be interpreted to hold PYM as an insurer.
Nothing herein shall be deemed to constitute a waiver of PYM's maritime lien. Invalidity of any one or more provisions of this contract shall not affect nor impair the remaining provisions. PYM T&C 3/19/12