1. PAYMENT TERMS: The customer shall pay Maximum Performance Hydraulics and Pacific Winch (together “MPH”) (without deduction or offset) for all work, materials, parts, and equipment provided. The amount invoiced by MPH shall be paid in full within 30 days of the date of the invoice. If the invoiced amount or any part thereof is not paid when due, the customer shall pay MPH interest at the rate of 18% per annum from the date due until paid. If the maximum allowable interest rate is less than 18% per annum, the rate of interest shall be the maximum amount allowed by law. If any legal action is brought to collect the amount due MPH for any invoiced amount, MPH shall be entitled to reasonable attorney fees plus costs, including attorney fees and costs incurred as a result of an appeal or in any bankruptcy or receivership proceeding.
2. PRICE AFFECTING WARRANTY: The charges for work, materials, parts, and equipment are based on the limited scope and duration of the warranties and upon the limitations on liabilities set forth herein. MPH is willing to perform work and provide materials, parts and equipment on the basis of different or more extensive liabilities or additional warranties, providing an adjustment in pricing, including the cost of appropriate additional insurance, has been signed by the parties. Barring such further agreement and adjustment in pricing, the warranty and limitations of MPH’s liability set forth herein shall apply.
3. LIMITED WARRANTY: (A) All work performed by MPH shall be free from defects in workmanship. The sole and exclusive remedy with respect to liability for any alleged negligent work by MPH, breach of any express or implied warranty, or any breach of this contract by MPH shall be strictly limited to, at MPH’s sole election, repair or adjustment of the defective workmanship. Any such repair or adjustment shall be done at a location selected by MPH. (B) MPH’s warranty with respect to all materials, parts and equipment installed by MPH shall be strictly limited to workmanlike installation in accordance with the manufacturer’s specifications and good practice. (C) MPH makes no warranty of any kind, express or implied, (including, but not limited to, warranties of fitness for particular purpose and warranties of merchantability) with respect to any materials, parts, or equipment not manufactured by MPH. All such materials, parts, and equipment shall be covered only by the warranties, if any, of the manufacturer. Upon request, MPH will furnish to the customer copies of warranties provided by vendors and third-party suppliers of materials, parts, and equipment. MPH will use its best efforts to the end that all warranties of such manufacturers and suppliers shall be for the benefit of the customer and subject to direct action by the customer. To the extent the foregoing is not reasonably feasible, MPH will, upon request, execute and deliver to the customer an assignment of such warranties.
4. WARRANTY AND LIABILITY LIMITATIONS: (A) ALL WARRANTIES AND CUSTOMER’S REMEDIES SET FORTH IN PARAGRAPH 3 SHALL TERMINATE AND EXPIRE SIX (6) MONTHS FROM THE LAST DATE THE WORK INVOICED WAS PERFORMED AND SIX (6) MONTHS FROM THE DATE OF THE COMPLETION OF THE INSTALLATION OF THE MATERIALS, PARTS AND EQUIPMENT AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES, WHETHER EXPRESS, IMPLIED OR STATUTORY. THERE ARE NO WARRANTIES OR REMEDIES WHICH EXTEND BEYOND THE DESCRIPTION HEREIN. MPH DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, THAT THE WORK, MATERIALS, PARTS OR EQUIPMENT ARE MERCHANTABLE OR FIT FOR ANY PARTICULAR PURPOSE OR THAT THE WORK, MATERIALS, PARTS OR EQUIPMENT COMPLY WITH ANY GOVERNMENT STANDARD INCLUDING, BUT NOT LIMITED TO, THE STANDARDS PROMULGATED PURSUANT TO THE OCCUPATIONAL SAFETY AND HEALTH ACT (OSHA) OR BY THE U.S. COAST GUARD.
(B) MPH WILL NOT BE LIABLE FOR (1) ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER OR, (2) ANY DELAY OR LOSS OF USE, INCLUDING, WITHOUT LIMITATION, LOST REVENUES, DELAY OR LOSS OF REVENUE.
(C) IN NO EVENT SHALL MPH’S AGGREGATE LIABILITY TO ALL PARTIES IN INTEREST FOR ALL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY TORT DAMAGES, EXCEED $300,000.00.
5. TIME LIMIT FOR FILING CLAIMS: NO CLAIM ARISING FROM THE WORK, MATERIALS, PARTS OR EQUIPMENT PROVIDED, INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR BREACH OF CONTRACT, BREACH OF WARRANTY CLAIMS, AND TORT CLAIMS BASED UPON ALLEGED NEGLIGENT REPAIR, FAILURE TO WARN, OR NEGLIGENT INSTALLATION OR ON THE THEORIES OF STRICT LIABILITY OR OTHERWISE, SHALL BE VALID AS AGAINST MPH UNLESS SAID CLAIM IS PRESENTED IN WRITING TO MPH WITHIN ONE YEAR FROM THE LAST DATE THE WORK INVOICED WAS PERFORMED, WITHIN ONE YEAR FROM THE DATE OF THE COMPLETION OF THE INSTALLATION OF THE MATERIALS, PARTS AND EQUIPMENT, AND SUIT FILED AND SERVED WITHIN 180 DAYS OF MPH’s RECEIPT OF THE WRITTEN NOTICE.
6. COMPLETION DATE: Unless MPH specifically declares in writing to complete the work or provide the materials, parts or equipment on a specific date, there is no warranty of any kind that the work will be completed or the materials, parts or equipment will be supplied by a certain date.
7. POLLUTION INSURANCE: The customer shall indemnify and save MPH harmless from all liability and expense, including reasonable attorney fees, arising out of any environmental pollution except in circumstances of environmental pollution which is affirmatively proved to have been solely caused by the negligence of MPH. Notwithstanding the provisions of this paragraph, the parties acknowledge that the pollution insurance available to MPH is restricted in that, among other limitations, it provides coverage only for pollution that occurs from sudden and accidental acts that are made known to MPH within 72 hours of such acts occurring. Unless the pollution insurer of MPH agrees to cover the claim, the customer agrees that MPH shall not be liable for any liability, indemnity, defense or damages resulting from pollution.
8. TAXES: The pricing does not include any amount for Washington sales or use tax. The customer shall provide MPH with a valid certificate of exemption, failing which, the customer shall promptly pay to MPH all amounts assessed for Washington state and local sales and use taxes.
9. SUBROGATION: To the extent not prohibited by the insurers of the customer, the customer, on behalf of itself and on behalf of its insurers, waives any right of subrogation that it has or that may accrue against MPH.
10. MULTIPLE PROJECTS: The customer and MPH acknowledge that these terms and conditions apply to the work, materials, parts, and equipment to be provided for the customer on multiple occasions. The customer acknowledges that it is the practice of MPH to require a customer to acknowledge the terms and conditions before MPH initiates the work or sells materials, parts, and equipment for a customer. So as to avoid the necessity of acknowledging the terms and conditions for each project or sale, the customer agrees that the terms and conditions shall apply to all of the work, materials, parts, and equipment provided by MPH for the vessels owned or managed by the customer or for any other work, materials, parts, and equipment requested by the customer.
11. RATES AND FEES: The standard MPH work day is 8 hours per day, 5 days per week. Depending on seasonal workload, the MPH work day may be increased to more than 8 hours per day and more than 5 days per week for extended periods. During these periods, all jobs taking place will incur overtime charges based on the percentage of time worked in excess of 40 hours. Excess hours shall be billed at one and half times the normal rate. Emergency services will be billed at normal rate plus a surcharge of $50.00 per labor hour. All work will be based on a time and material basis unless otherwise stated in writing by MPH. Minimum shop charge shall be one (1) labor hour. MPH shall make annual adjustments to its billable hourly and material rates. Rate will not adjust during a project in progress. All invoices will incur a hazmat fee of 1.5% for the disposal of non-recyclable hazardous waste materials and a consumables fee of 1% for the use of non-inventory items related to project completion.