Terms and Conditions of Sale and Services

 

  1. Agreement. These Terms and Conditions of Sale and Services, together with the Order Form (as defined below) create the agreement (“Agreement”) between Shelter and Customer for the purchase and sale of Products and/or Services. In case of conflict, the documents shall control in the following order of precedence: the Order Form and these Terms. Any additional or different terms that Customer may provide or communicate to Shelter are material alterations and Shelter expressly rejects them.

 

  1. Parties to this Agreement; Definitions. As used in this Agreement, the terms: (a) “Shelter” shall mean Pacific Marine Group, LLC dba Shelter Island Inflatables (b) “Customer” shall mean the customer identified in the Service Authorization, estimate, quotation, 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, quotation or order which reference these Terms,  prepared by Shelter and signed by Customer (e) “Part(s)” shall mean the new and/or used parts, components, accessories or materials either sold as a Product or used in the Services; (f) “Products” shall mean trailerable and inflatable boats, outboard motors, or parts; (g) “Services” shall mean the repair and/or maintenance services performed by Shelter for Customer; (h) “Terms” shall mean these terms and conditions of sale and services, and (i) “Vessel” shall mean Customer’s vessel (under his ownership or control) to be serviced by Shelter.

 

  1. DISCLAIMERS AND LIMITATIONS

LIMITED WARRANTY ON SERVICES:  Shelter 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 Shelter’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 Shelter’s repair facilities. Any claim for repairs to be performed by other than Shelter must be approved in writing by Shelter 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. SHELTER PROVIDES NO OTHER WARRANTIES CONCERNING ITS SERVICES AND DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. No warranties are provided by Shelter on fuel & carburetor Services or Parts in case of corrosion related failures or fuel system failures due to old or contaminated fuel related Parts & Services (as Shelter cannot control the quality of fuel used once the motor has left its facility). Shelter 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.  

LIMITED WARRANTY ON PRODUCTS. Products are warranted, to the original buyer only, for use solely by Customer or direct affiliate, against defects in material and workmanship for a period of one year from the date of Delivery.  Shelter does not warrant any Products against defects caused by misuse, abnormal operating conditions, alterations or damage caused by events beyond the control of Shelter. Shelter shall not be liable for product defects caused by or resulting from any inaccuracies in any drawing, description or specification supplied by the Customer. Upon Customer’s written request during the warranty period, Shelter, at its choice, will repair or replace defective products within a reasonable time. The original term of warranty applies, without extension, for repaired or replacement products. All defective merchandise shall be sent to Shelter freight prepaid by Customer in packaging appropriate to prevent damage in transit.  All Customer paid repairs performed by Shelter are warranted against defects in materials and workmanship for 90 days from the completion of repair. Upon Customer’s written notice of defect within the 90 day period, Shelter will replace the defective part(s). This warranty is limited to failures in areas directly related to the repair performed. THIS LIMITED PRODUCT WARRANTY ARE THE SOLE LIABILITY OF SHELTER WITH REGARD TO ITS PRODUCTS.

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, SHELTER EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED. REGARDLESS OF WHETHER UNDER CONTRACT OR TORT, NEGLIGENCE, OR ANY OTHER LEGAL THEORY, THE LIMITED PRODUCT AND SERVICES WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE AND NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY. No warranties are provided on customer supplied parts.

 

  1. Rates; Taxes; Additional Repairs; cancellation.  

Quotations. Unless otherwise specified in writing, all Shelter quotations are firm for ninety (90) days from the date of the quotation. 

Prices. All prices are effective only as set forth in a Shelter 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. If Shelter pays such taxes on Customer’s behalf, Customer shall reimburse Shelter in full. 

Charges for labor. Shelter’s charges for labor are not based on actual mechanic’s time but are established by multiplying Shelter’s labor rate by industry time allowances or Shelter’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 Shelter’s then prevailing rates (with respect to time) or prices (with respect to parts, materials and supplies). However, if Shelter 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.  Shelter 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.  Shelter is not responsible for any loss, damage, or other liability caused by, arising from, or related to repair or maintenance work recommended by Shelter that is declined by Customer. Customer agrees that Shelter 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 Shelter prior written consent. All boat, motor and special order sales are final.

 

  1. 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 Shelter, reasonably necessary to perform the work specified by the Customer’s instructions. Customer authorizes Shelter to operate the Vessel for purpose of testing, inspection, delivery, docking and berthing, and when otherwise necessary, at Customer’s risk. All parts removed will be discarded unless Customer requested otherwise.

 

  1. Sublet Repairs.  Customer acknowledges that portions of the repairs may be provided by a subcontractor hired by Shelter and Customer hereby authorizes all sublet repairs that Shelter, in its sole discretion, may deem necessary.

 

  1. Damage; Theft.  Shelter is not responsible for loss of or damage to the Vessel or Customer equipment due to or arising from fire, weather, theft or any other cause except the sole negligence of Shelter.  Shelter 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 including due to customer supplied rigging such as lifting bridals.

 

  1. Payment; Storage Fees.

Payment for Products is due and payable upon delivery, unless otherwise agreed in writing. 

Payment for materials and services is due and payable upon completion of the work, or prior to delivery upon the expiration of three (3) days after notice to Customer that the repairs have been completed. All vessels left 24hrs after notification of completion will incur $25 per day storage fees until pick-up or delivery arrangements have been made.  If the Vessel described herein is not picked up within 24 hours after such notice is given, Shelter 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. 

Down Payment. Shelter may request a down payment before delivering any product or commencing any work, with the balance is due at time of completion/delivery and before pick-up/delivery.

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.

 

  1. Mechanic’s Lien; Lien Sale; Collection.  In addition to any and all other legal remedies available to Shelter, Customer authorizes and acknowledges an express mechanic’s lien in favor of Shelter 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 Shelter has notified the Customer that the repairs are completed: (i) Shelter may, in accordance with applicable state law, begin lien sale proceedings and sell the Vessel at public auction; and/or (ii) Shelter 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 Shelter, Shelter 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.

 

  1. LIMITATION OF LIABILITY: SHELTER’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 PURCHASE PRICE OR CHARGES OF THE APPLICABLE ITEM(S) OR SERVICES. IN NO CASE SHALL SHELTER BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, DIRECT LIABILITY OR ANY OTHER LEGAL THEORY. EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO; LOSS OF PROFIT, LOSS OF SAVINGS OR REVENUE, LOSS OF USE OF THE PRODUCT OR ANY ASSOCIATED EQUIPMENT, DOWNTIME, THE CLAIMS OF THIRD PARTIES, INCLUDING CUSTOMER, DAMAGE TO PROPERTY OR INJURY TO PERSONNEL. SHELTER 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 SHELTER REASONABLY ATTACHES FOR HANDLING, LIFTING OR MOORING.

 

  1. 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 Shelter.

 

  1. Fees and Expenses of Actions.  In any Action, whether initiated by Shelter 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 Shelter shall have the same right to recover reasonable attorneys’ fees and costs incurred in connection with the Action in the event that Shelter prevails.

 

  1. Waiver; Severability; Entire Agreement.  No waiver of any term of this Agreement shall be valid unless it is in writing and signed by Shelter’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.

 

  1. Insurance

Shelter 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 Shelter’s premises, BEFORE any work is undertaken by them or by Shelter.

 

  1. Communication Consent; Use of Customer Data.  Shelter may use information Customer provides Shelter, 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 Shelter 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 Shelter 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 Shelter and such Maintenance Third Parties to support and enhance Vessel repair services provided to Shelter and the Maintenance Third Parties’ customers.  You also authorize Shelter 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.

Last Modified:  September 23, 2019