- Agreement. These Terms of Service, together with the Order Form (as defined below) create the agreement (“Agreement”) between Explorer and Customer for the purchase and sale of Services. In case of conflict, the documents shall control in the following order of precedence: the Order Form and these Terms of Service. Any additional or different terms that the Customer may provide or communicate to Explorer are material alterations and Explorer expressly rejects them.
- Parties to this Agreement; Definitions. As used in this Agreement, the terms: (a) “Explorer” shall mean Pacific Marine Group, LLC dba Explorer Marine Services; (b) “Customer” shall mean the Customer identified in the Service Authorization, estimate, work order, online request or other ordering document; (c) “Manufacturer(s)” shall mean the entity or entities that manufactured the Parts used in the Services; (d) “Order Form” shall mean the estimate or work order which reference these Terms of Service, prepared by Explorer and signed by Customer (e) “Part(s)” shall mean the new and/or used parts, components, accessories or materials used in the Services; and (f) “Services” shall mean the repair and/or maintenance services performed by Explorer for Customer, together with the Parts; “Terms of Service” shall mean these terms and conditions of maintenance and repair services, and (g) “Vessel” shall mean Customer’s vessel (under his ownership or control) to be serviced by Explorer.
- WARRANTY DISCLAIMERS AND LIMITATIONS
LIMITED WARRANTY ON SERVICES: Explorer warrants that the Services will be performed in a good and workmanlike manner (“Services Warranty”). The Services Warranty is valid for a period of 90 days from the date the Services are performed. Customer’s sole and exclusive remedy, and Explorer’s entire liability under the Services Warranty, is the repair of any nonconforming portion of the Services. The Services Warranty is valid only if the Vessel is returned, at Customer’s expense, to Explorer’s repair facilities or if vessel remains at same marina location where repairs took place. Any claim for repairs to be performed by other than Explorer must be approved in writing by Explorer prior to commencement of any work. The Services Warranty extends only to the Customer for whom the Services were provided and not any subsequent purchaser. EXPLORER PROVIDES NO OTHER WARRANTIES CONCERNING ITS SERVICES AND DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.
PARTS – MANUFACTURER WARRANTIES ONLY: Any warranties on any Parts are limited only to those written warranties provided by the applicable Part’s manufacturer. EXCEPT FOR ANY SUCH WARRANTIES MADE BY MANUFACTURERS, THE PARTS ARE SOLD WITHOUT ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EACH OF WHICH IS EXPRESSLY DISCLAIMED. NO OTHER WARRANTIES: EXCEPT AS SET FORTH ABOVE, EXPLORER EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED. Explorer neither assumes nor authorizes any other person to assume for it any liability in connection with the services or any parts provided to customer in conjunction with the services.
- Rates; Authorization; Additional Repairs. Quotations. Unless otherwise specified in writing, all Explorer quotations are firm for ninety (90) days from the date of the quotation.
Prices. All prices are effective only as set forth in an Explorer quotation according to the schedule in that quotation. All prices are subject to change without notice and are subject to correction of clerical errors. Taxes. Customer is responsible for and shall pay all taxes and/or duties applicable to the products (Parts). If Explorer pays such taxes on Customer’s behalf, Customer shall reimburse Explorer in full. Charges for labor. Explorer’s charges for labor are not based on actual mechanic’s time but are established by multiplying Explorer’s labor rate by industry time allowances or Explorer’s own judgment of the time to be charged. 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 Customer shall be charged and shall pay for all time, parts, materials, and supplies at Explorer’s then prevailing rates (with respect to time) or prices (with respect to parts, materials and supplies). However, if Explorer discovers that different or additional repairs are indicated, Customer will be contacted for authorization to make such additional repairs. Authorization may be given by Customer orally or in written form, including email. In the event that Customer authorizes commencement but does not authorize completion of a repair or service, a charge will be imposed for disassembly, reassembly, or partially completed work. Such charge will be directly related to the actual amount of mechanic’s time and/or parts involved in the inspection, repair, or service performed. Explorer will submit warranty claims on behalf of Customer for manufacturers for whom it is authorized to perform warranty service; however Customer understands and agrees that it is responsible for full payment for any Services provided that are not covered by warranty. Explorer is not responsible for any loss, damage, or other liability caused by, arising from, or related to repair or maintenance work recommended by Explorer that is declined by Customer. Customer agrees that Explorer employees may operate Customer’s Vessel for purposes of facilitating the repairs, including but not limited to diagnosing, road testing, and sublet services. Cancellation. No order may be cancelled by Customer in whole or in part, without Explorer prior written consent.
- OEM Parts. Customer acknowledges that estimates for non-warranty repairs may include parts not made by the original manufacturer. Parts used in the non-warranty repair of customer’s Vessel by other than the original manufacturer are required to be at least equal in like kind and quality in terms of fit, quality and performance to the original manufacturer parts they are replacing. Customer 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 Explorer, reasonably necessary to perform the work specified by the Owner’s instructions. Owner authorizes Explorer to operate the Vessel for purpose of testing, inspection, delivery, docking and berthing, and when otherwise necessary, at Customer’s risk.
- Sublet Repairs. Customer acknowledges that portions of the repairs may be provided by a subcontractor hired by Explorer and Customer hereby authorizes all sublet repairs that Explorer, in its sole discretion, may deem necessary.
- Damage; Theft. Explorer is not responsible for loss of or damage to the Vessel due to or arising from fire, weather, theft or any other cause except the sole negligence of Explorer. Explorer is not responsible for any loss or damage to articles of personal property that have been left in the Vessel or for loss or damage to bodies, trailers or special equipment, including any cargo, materials or supplies carried on or in such bodies, trailers or special equipment, whatever the cause.
- Payment; Storage Fees. All charges for repairs including labor and materials furnished are due and payable simultaneously with the delivery of the within described Vessel or prior to delivery upon the expiration of three (3) days after notice to Customer that the repairs have been completed. If the Vessel described herein is not picked up within three (3) days after such notice is given, Explorer may charge daily storage fees at rates that are ordinary and customary for the area, but not to exceed $50.00 per day or the maximum rate allowable by applicable law. 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 Explorer, whichever is earlier. Down Payment. Explorer may request a down payment before commencing any work, with the balance is due at time of completion and before pick-up. Late payment. All invoiced amounts unpaid and outstanding will be subject to a charge of one and one half percent (1½%) per month (18% per annum) from the date due or up to the maximum allowed by applicable law from the date due.
- Mechanic’s Lien; Lien Sale; Collection. In addition to any and all other legal remedies available to Explorer, Customer authorizes and acknowledges an express mechanic’s lien in favor of Explorer on the Vessel described herein for all charges for repairs, including labor and parts, storage and/or towing. Customer authorizes and acknowledges that if payment in full is not received within ten (10) days after Explorer has notified the Customer that the repairs are completed: (i) Explorer may, in accordance with applicable state law, begin lien sale proceedings and sell the Vessel at public auction; and/or (ii) Explorer may refer such account to its attorneys or a collection agency for collection. Customer shall be liable for space rental and dockage fees if the Vessel is not claimed by Customer within 24 hours after completion of work performed under this work order or supplements thereto. If any charges, including but not limited to charges for construction, repairs and installations, and those for space rental and dockage, are not paid within ten (10) days after delivery of any statement rendered by Explorer, Explorer shall have a lien on the Vessel, and may thereafter sell the vessel and its equipment at a public auction. The proceeds of the sale shall be applied to the discharge of the lien and the cost of maintaining, storing and selling the Vessel. The remainder, if any, shall be paid to the Customer.
- Governing Law; Venue; Time to Commence Action. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would cause the application of Laws of any jurisdiction other than those of the State of California. Any legal suit, action or proceeding arising out of or related to this Agreement shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in San Diego and San Diego County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. Customer has one (1) year from the accrual of any cause of action arising from the purchase of the Services to commence an Action against Explorer.
- LIMITATION OF DAMAGES. CUSTOMER AGREES THAT IN THE EVENT OF ANY ACTION BROUGHT BY CUSTOMER AGAINST EXPLORER, CUSTOMER SHALL NOT BE ENTITLED TO RECOVER ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES AS DEFINED IN THE UNIFORM COMMERCIAL CODE, INCLUDING, BUT NOT LIMITED TO INDIRECT OR SPECIAL DAMAGES, LOSS OF INCOME OR ANTICIPATED PROFITS, OR DOWN-TIME, OR ANY PUNITIVE DAMAGES. EXPLORER’S TOTAL LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING OUT OF ANY AND ALL CAUSES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DEFECTS IN THE GOODS, SERVICES, SUPPLIED UNDER THIS AGREEMENT, SHALL IN NO EVENT EXCEED THE CHARGES OF THE SERVICES PAID UNDER THIS AGREEMENT. EXPLORER 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 EXPLORER REASONABLY ATTACHES FOR HANDLING, LIFTING OR MOORING.
- Fees and Expenses of Actions. In any Action, whether initiated by Explorer or Customer, where the Customer has a right, pursuant to statute, common law or otherwise, to recover reasonable attorneys’ fees and costs in the event it prevails, Customer agrees that Explorer shall have the same right to recover reasonable attorneys’ fees and costs incurred in connection with the Action in the event that Explorer prevails.
- Waiver; Severability; Entire Agreement. No waiver of any term of this Agreement shall be valid unless it is in writing and signed by Explorer’s authorized representative. If any provision or part of any provision of this Agreement shall be deemed to violate any applicable law or regulation, such invalid provision or part of a provision shall be inapplicable, BUT the remaining part of that provision and the remainder of the Agreement shall continue to be binding and enforceable.This Agreement constitutes the entire agreement and understanding between the parties hereto and supersedes any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.
- Insurance
Explorer reserves the right to require Customer 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 Explorer’s premises, BEFORE any work is undertaken by them or by Explorer.
- Monthly Maintenance
The term and any renewal terms for the maintenance of are described in the Order Form. The Agreement will become effective, without further notice of acceptance, when we accept your Order Form in our headquarters in San Diego, CA (“Effective Date”). Unless indicated otherwise in the Order Form, the Agreement will automatically continue in effect at then-current list pricing on a month to month basis (“Order Term”) or until one party terminates the Agreement in accordance with this Section 14. Either party may terminate an Order Form by giving the other party written notice of its intent to do so, and such termination will become effective 30 days after the notice is given or upon expiration of the current Order Term, whichever occurs later. We may suspend our services or terminate the Agreement if, there has been a material breach of your obligations under the Agreement, or a violation of law. If the cause of the suspension is reasonably capable of being remedied, we will provide you notice of what actions you must take to reinstate the product. If you fail to take the actions or the cause cannot be remedied within 10 days, we may terminate the Agreement. You may terminate the Agreement immediately upon written notice if we commit a material breach and fail to cure the material breach within 30 days. We may amend these Terms of Service from time to time by giving you at least 30 days prior written notice. If an amendment materially changes the Agreement, you may request good faith negotiations regarding those terms that materially change the Agreement. If the parties cannot reach mutual agreement on the material changes within 30 days, you may terminate the Agreement immediately on written notice. Termination of the Agreement will not relieve you of your obligation to pay us any amounts you owe up to and including the date of termination.
- Communication Consent; Use of Customer Data. Explorer may use information Customer provides Explorer, including but not limited to email addresses, cell phone numbers, and landline numbers (“Customer Data”) to contact Customer for purposes related to this account, including debt collection, and for marketing and sales purposes. You also authorize Explorer and its affiliates to use and disclose Customer Data to third parties for any purpose in an anonymous or aggregated form that does not identify Customer. In addition, Customer Data and Vessel maintenance service and repair information arising from or created as a result of maintenance and repair services provided by Explorer to Customer, including Vessel owner information, Vessel identification numbers and Vessel specifications (“Vessel Repair Data”), may be provided to Vessel/component manufacturer(s) and the Vessel/component manufacturer(s) dealers, and their respective service management platform providers (“Maintenance Third Parties”) and used by Explorer and such Maintenance Third Parties to support and enhance Vessel repair services provided to Explorer and the Maintenance Third Parties’ customers. You also authorize Explorer and the Maintenance Third Parties to use and disclose Vessel Repair Data to third parties for any purpose in an anonymous or aggregated form that does not identify Customer.