1. Entire Agreement: These Terms and Conditions, including the Yard Contract and any applicable payment terms, constitutes the entire agreement between E.J. MERTAUGH BOAT WORKS (EJMBW) and the customer / owner (OWNER) regarding the services, storage, dockage, or other services provided by EJMBW. This Agreement (AGREEMENT) shall also apply to any agent or other person or entity acting under the direction, control, or on behalf of either party, excluding future transferees unless otherwise agreed to in writing. 

2. Severability: If any provision of this Agreement is determined to be invalid or unenforceable, the remaining provisions shall remain in full force and effect, and this Agreement shall be construed as if the invalid or unenforceable provision had been omitted. 

3. Damage Mitigation: In the event of an emergency or threat to safety or security, the owner authorizes EJMBW, but does not obligate EJMBW, to attempt reasonable and appropriate measures to mitigate potential damages to the vessel, other equipment and EJMBW’s property and surrounding property. The owner agrees to pay EJMBW’s reasonable charges for any such mitigation efforts.

 
4. Access: During the term of this agreement, EJMBW may, at its own discretion, grant the owner access to work on the vessel. If the owner desires work on the vessel that is not offered by EJMBW, an outside contractor may be granted access at EJMBW’s discretion. Before access is granted, the outside contractor must provide EJMBW with a certificate of insurance satisfactory to EJMBW, naming EJMBW as an additional insured. The boat owner acknowledges that the outside contractor’s insurance does not absolve the owner of responsibility for injuries, damages, or other claims arising from the outside contractor’s work or presence on EJMBW property. 

5. Breach of Contract: A breach of contract is considered to have occurred when one party has acted in a manner inconsistent with this agreement. In the event that a breach of contract was to occur, the breaching party may not sue or take any legal action against the non-breaching party. 

6. Negligence Exclusion: The owner acknowledges that he/she is responsible for the vessel and any persons brought or invited to EJMBW facilities by the owner. The owner understands that EJMBW shall not be
held in breach of contract or considered negligent for any dollar damages due to a) injury to persons, including death, or b) damage to any property including the vessel and its contents. This exclusion of any claim by the owner and the owner’s invitees for breach of contract or negligence includes any incident arising in any way from this agreement or of the vessel at EJMBW, regardless of whether caused by EJMBW or its agents’ acts or omissions, wind, rain, snow, ice, flood, sinking, fire, spillage, power outage, structural or mechanical failure, theft, vandalism or any other event. 

7. Indemnification: The owner agrees to forever indemnify and hold harmless EJMBW and its employees/agents against any and all claims, suits, actions, torts, legal or administrative proceedings, demands, judgments, liabilities, attorney/arbitrator fees, and expenses of any nature or claims thereof arising out of misuse, injury, death, damage, loss, negligence (not amounting to gross negligence) breach or any other matter as it pertains to this agreement. 

8. Extension: The owner acknowledges that this agreement’s provisions shall extend to periods before and after the dates listed herein (or verbally agreed upon heretofore) if the vessel is present at EJMBW, providing that no other written agreement has been executed. 

9. Transfers: This agreement is not transferable or assignable by the owner. 

10. Payment: Invoices are due within 10 days of the invoice date. Any balance not paid within this timeframe may be charged to the card on file. By agreeing to these Terms & Conditions, the Owner also acknowledges and agrees to EJMBW’s Customer Payment Policy. 

11. Liens: The owner agrees that any unpaid amounts owed to EJMBW under the previous section constitute a lien on the vessel in favor of EJMBW under the Michigan Marina and Boatyard Storage Lien Act. While EJMBW is entitled to foreclose its lien, if the owner does not pay all unpaid amounts due and remove the vessel after written demand to do so, the owner agrees that EJMBW may (at its option) sell the vessel non-judicially to recover unpaid amounts due and/or take such other steps EJMBW deems appropriate to remove the vessel from EJMBW’s premises, including disposal of the vessel. The owner agrees to pay for EJMBW’s reasonable attorneys or fees and costs incurred in enforcing the provisions of this section. 

12. Disputes: Any breach or dispute arising out of this agreement that cannot be solved through non-binding means shall be settled by arbitration. The owner and EJMBW agree that they are not allowed to litigate any disputes regarding this contract. The arbitration shall be held in accordance with the American Arbitration Association rules and regulations and an arbitrator shall be selected who has substantial experience regarding the nature of the dispute. Hearings shall be tried under the State of Michigan Law and occur in St. Ignace, Michigan or Sault Ste. Marie, Michigan.