TERMS, CONDITIONS and LIMITED WARRANTY
These TERMS, CONDITIONS and LIMITED WARRANTY (“Terms & Conditions”) represent the final and complete agreement of the parties and govern any and all repairs or services rendered by Mendol U.S.A., Inc. (hereinafter “Mendol”). These Terms & Conditions supersede all prior negotiations, agreements and understandings with respect to any repairs, services or parts rendered by Mendol. No modifications to these Terms & Conditions shall be binding upon Mendol unless made in writing and signed and approved by an officer of Mendol. Receipt of goods or services by the vessel owner or customer shall be deemed conclusive proof of irrevocable acceptance of these Terms & Conditions. Similarly, these Terms & Conditions shall be deemed irrevocably accepted upon commencement of work by Mendol at Mendol U.S.A., Inc.’s. facility or at any other location. In the event that there is a conflict between these Terms & Conditions and any other representations or documents which contain terms and conditions, these Terms & Conditions shall supersede and govern.
LIMITED WARRANTY: THIS LIMITED WARRANTY IS THE COMPLETE AND EXCLUSIVE AGREEMENT BETWEEN THE PARTIES CONCERNING
MENDOL’S WARRANTY OBLIGATIONS AND VESSEL OWNER OR CUSTOMER’S RIGHTS. This Limited Warranty supersedes all prior and contemporaneous agreements, representations or warranties, whether oral or written, and all other communications between the parties relating to services and/or repairs rendered by Mendol including, but not limited to, replacement of parts, repair of parts, return or crediting of purchase price, referral of the claim to the original manufacturer for manufacturer’s warranty review, Mendol’s marketing materials or any sales representations that may have been made at any time by Mendol, its agents or employees. No employee, agent, or broker of Mendol is authorized to make any warranties or representations in addition to those made herein and any such representations or warranties are hereby deemed null and void. THERE ARE NO WARRANTIES, REPRESENTATIONS OR REMEDIES WHICH EXTEND BEYOND THE DESCRIPTION WITHIN THIS LIMITED WARRANTY. Mendol makes no warranty and specifically disclaims all liability for design of any items supplied. Mendol shall not be liable for any personal injury or death resulting from its provision of repairs, parts or services. The vessel owner, purchaser and/or customer agrees to indemnify, defend and hold Mendol harmless for any such claims brought against Mendol by or on behalf of any person other than a Mendol employee.
The vessel owner and/or customer’s Limited Warranty and sole recourse is, at Mendol’s discretion, limited to the replacement of parts, repair of parts, return or crediting of the purchase price, or referral of the claim to the original manufacturer for the manufacturer’s warranty review. The vessel owner and/or customer is responsible to pay for any shipping costs associated with obtaining replacement parts. Further, if it becomes necessary for a Mendol representative to travel to the vessel, all flights and accommodations will be at the expense of the vessel owner and/or customer. Mendol shall not be liable, directly or indirectly, in contract, tort or otherwise to the vessel’s owner(s), charter(s), underwriter(s), lien holder(s) or other parties in interest for any damage to the vessel, its engines, equipment or appurtenances unless such damage is caused solely by Mendol’s gross negligence or intentional tort. In no event shall Mendol’s aggregate liability in connection with any parts, repairs or services rendered to any vessel exceed the sum of fifty thousand dollars ($50,000.00) or the value of the relevant vessel, whichever figure is less. Further, in no event shall Mendol be liable for any incidental, economic, consequential or special damages, including, but not limited to: faulty or negligent design or manufacture, delay, loss of revenue, loss of use, loss of charter revenue, detention, wharfage, demurrage, tug expense, pilotage, crew wages, salvage or dockage.
This Limited Warranty is only valid for ninety (90) days following the completion of the repairs or services rendered by Mendol. 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. Remedies for latent defects not discovered and submitted to Mendol within the 90 day period shall be exclusively limed to remedies available from the manufacturer, if any. Written notice of a potential claim must be provided to Mendol within fourteen (14) days after the occurrence of any incident potentially covered under this Limited Warranty.
This Limited Warranty will be voided and no parts or labor will be warranted, and no liability shall be held if the repairs or services rendered by Mendol have been tampered with by any unauthorized individual without prior written approval by Mendol. This applies to any modification, installation, alternation or other unauthorized work which alters the original workmanship of Mendol.
MENDOL HEREBY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF MERCHANTABILITY AND THE
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
FORCE MAJEURE: Mendol shall not be liable in any event for any loss, damage or delay caused by strikes, labor difficulties, accidents, delays in delivery of materials, acts of God, war, or restraint of princes, including, but not limited to, restraint by local, state, or federal authorities, or causes of any kind beyond Mendol’s control, including, but not limited to, tropical storms, hurricanes, lightning or rain. Estimates of a timeframe for the beginning and completion of any work are estimates only, and under no circumstances whatsoever shall they be construed as legally binding.
FORUM AND CHOICE OF LAW: These Terms & Conditions as well as any Estimation for services and/or parts to be rendered by Mendol shall be deemed to have been executed and fully performed within the State of Florida. Except as otherwise specified herein, any and all disputes whatsoever arising out of or relating to repairs, parts or services rendered by Mendol, or these TERMS, CONDITIONS and LIMITED WARRANTY, including the interpretation, applicability, and enforcement of same, shall be interpreted and construed exclusively in accordance with the General Maritime Law of the United States, without regard to choice of law rules, which replace, supersede and preempt any provision of law of any state or nation to the contrary. Should no such law exist on any particular issue, the laws of the State of Florida, to the exclusion of the laws of any other state or country, shall control. For U.S. and non U.S. vessel owners and customers alike, it is hereby agreed that any and all disputes, claims or controversies against Mendol shall be commenced, filed and litigated, if at all, before the United States District Court for the Southern District of Florida in Broward, Florida, or as to those lawsuit which the United States District Court lacks subject matter jurisdiction, before a court of competent jurisdiction in Broward County, Florida, U.S.A., to the exclusion of the Courts of any other country, state, city or county where suit might otherwise be brought.
PAYMENT AND PRICE: Prices quoted and product availability stated are only valid for thirty (30) days unless designated for a specific other period in writing by an officer of Mendol. Payment in all cases is net upon receipt of invoice. Interest in the amount of 1.5% per month is to be added to the invoice amount if full payment is not received by Mendol within thirty days of presentation of the invoice. Mendol may place any account not paid within thirty (30) days into the hands of attorneys for collection. All payments must be made in Florida at 3010 Ravenswood Road, Unit 2B, Dania Beach, FL, 33312 or by wire (instructions available upon request). Payments made by wire are to be deemed payments made in Florida. The owner, individually, and the vessel, in rem, shall be liable for payment for any work done on or materials furnished to any vessel, whether authorized orally, by letter, or by written contract and regardless of whether Mendol is the general contractor or a subcontractor. VESSEL WARRANTIES: The vessel, its owners, charterers, underwriters, lien holders, and all parties in interest, shall indemnify and hold Mendol 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 Mendol’s own employees. Owners, or other parties of 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 Mendol is furnishing repairs, parts, or services.
MARITIME LIEN: Nothing herein shall be deemed to constitute a waiver of Mendol’s maritime lien. To the contrary, the vessel owner and/or customer acknowledge that Mendol looks to the credit of the vessel for any repairs, parts and services rendered and that Mendol has a maritime lien pursuant to 46 U.S.C. §31342 for any necessaries rendered.
MERGER & SEVERABILITY: A waiver of any covenant, obligation or agreement contained herein shall not be construed as a waiver of any subsequent breach of any other covenant, obligation or agreement; nor shall forbearance to seek a remedy for any breach be a waiver of any right or remedy with respect to any subsequent breach. These Terms & Conditions may only be amended in a writing signed and approved by an officer of Mendol. These Terms & Conditions may not be changed orally. These Terms & Conditions shall be severable, and if any provision of these Terms & Conditions is held invalid or unenforceable for any reasons, such provision shall be adjusted to the minimum extent necessary to cure such invalidity. The invalidity or unenforceability of one or more of the provisions in these Terms & Conditions shall not affect any other provision; on the contrary, all remaining provisions of this Contract shall remain in full force and effect. All terms of this Contract survive in perpetuity.