Terms and conditions
underwater recovery - salvage - maintenance - repair
11. Agreement. These Terms of Service, together with the Order Form (as defined below) create the agreement (“Agreement”) between Kirner Marine 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 Kirner Marine are material alterations and Kirner Marine expressly rejects them.
2. Parties to this Agreement; Definitions. As used in this Agreement, the terms: (a) “KM, Kirner, and/or Kirner Marine ” shall mean Tayler Kirner, dba Kirner Marine; (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 Kirner Marine 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 Kirner Marine 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 Kirner Marine
Rates; Authorization; Additional Repairs:
3. Quotations. Unless otherwise specified in writing, all Kirner Marine quotations are firm for ninety (90) days from the date of the quotation.
4. Prices. All prices are effective only as set forth in an KM quotation according to the schedule in that quotation. All prices are subject to change without notice and are subject to correction of clerical errors.
5. Taxes. Customer is responsible for and shall pay all taxes and/or duties applicable to the products (Parts). If KM pays such taxes on Customer’s behalf, Customer shall reimburse KM in full.
6. Charges for labor. KM charges for labor are not based on actual company representative time but are established by multiplying KM’s labor rate by industry time allowances or KM’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 KM’s then prevailing rates (with respect to time) or prices (with respect to parts, materials and supplies). However, if Kirner Marine 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 the representative's time and/or parts involved in the inspection, repair, or service performed. Kirner Marine 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. Tayler Kirner d.b.a. Kirner Marine is not responsible for any loss, damage, or other liability caused by, arising from, or related to repair or maintenance work recommended by KM that is declined by Customer. Customer agrees that KM representatives / contractors may operate Customer’s Vessel for purposes of facilitating the repairs, including but not limited to diagnosing, road/water testing, and sublet services.
7. Cancellation. No order may be canceled by the Customer in whole or in part, without KM prior written consent.
8. Payment. All charges for repairs including labor and materials furnished are due and payable simultaneously at time of service. Payment for materials and services is due and payable at time of service of the work, or within ten (10) days after the date of any statement rendered by Kirner Marine, whichever is earlier.
9. Down Payment. Kirner Marine may request a down payment before commencing any work, with the balance due at time of service and before pick-up.
10. 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.
11. Electronic Payment. Kirner Marine encourages paperless transactions for the benefit of our environment. Cash and Check are also accepted.
12. 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 Los Angeles, Los Angeles 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
13. LIMITATION OF DAMAGES. CUSTOMER AGREES THAT IN THE EVENT OF ANY ACTION BROUGHT BY CUSTOMER AGAINST TAYLER KIRNER D.B.A. KIRNER MARINE , 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. 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. KIRNER MARINE 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 KM REASONABLY ATTACHES FOR HANDLING, LIFTING OR MOORING.
14. Waiver; Severability; Entire Agreement. No waiver of any term of this Agreement shall be valid unless it is in writing and signed by authorized Kirner Marine representatives. 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.
15. Communication Consent; Use of Customer Data. Kirner Marine may use information the Customer provides to KM, 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 KM 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 KM 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 KM and such Maintenance Third Parties to support and enhance Vessel repair services provided to KM and the Maintenance Third Parties’ customers. You also authorize KM 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.
recovered / salvaged item(s) disclaimer
KIRNER MARINE DOES NOT ASSUME LIABILITY FOR THE AESTHETIC, FUNCTIONALITY AND/OR ABILITY OF USE OF ANY RECOVERED ITEM(S) (i.e. any item with a “IP” rating and/or battery [cell phone / key fobs]). Any recovered / salvaged item(s) are deemed hazardous and are required to be handled, transported and/or stored by appropriate personnel. The undersigned accepts all liability from any recovered and/or salvaged items “as is” once relinquished by Kirner Marine. Any recovered item from either gray, and/or black water are required to be decontaminated by appropriate personnel. KM does not assume liability of decontamination of any item.
1. PAYMENT: Payment is due and payable at time of service. Kirner Marine may request a down payment before commencing any work, with the remaining balance due upon time of service. In the event Kirner Marine are unable to recover and/or salvage item(s) payment is still required; please refer to (3) for further information.
2. BATTERIES: All defective batteries and/or misuse of batteries may lead to damage, fire, explosion, property damage, property loss, and or permanent debilitating injury and/or death. Contact the manufacturer for all pertinent safety information. NIHM Batteries: known to potentially rupture causing injury and/or death. LITHIUM POLYMER and or Li-iON Batteries are VOLATILE: they may explode causing property destruction and/or death. All batteries of any type are considered hazardous and are required to be handled, transported and/or stored by appropriate personnel.
3. UNABLE TO LOCATE ITEM(S): In the event Kirner Marine are unable to recover and/or salvage item(s) payment is still required. Kirner Marine will do everything in their power to locate, recover, and/or salvage any item(s). The most common reason for an item(s) to not be located: water clarity, water movement, ocean/lake/river bottom composition, surrounding vessel traffic, item(s) located in restricted area.
release of liability and agreement
not to sue, indemnification, hold harmless
In consideration for providing vessel maintenance, restoration, and/or repair, you agree to accept all responsibility for the risk that you may sustain damages while said services are being performed.
The undersigned hereby releases, waives, discharges and covenants not to sue Tayler Kirner, d.b.a. Kirner Marine , including its directors, officers, contractors, volunteers, and agents, from all liability to the undersigned and all of undersigned’s personal representatives, assignees, heirs, and/or next of kin for any loss or damage, and any claim or demand of any injury or damage, whether caused by the negligence, active or passive, while the aforementioned services are being provided by Tayler Kirner, d.b.a. Kirner Marine The undersigned expressly and knowingly waives all rights under California Civil Code 1542, which provides: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
The undersigned agrees to indemnify and save and hold harmless Tayler Kirner, d.b.a. Kirner Marine, including its directors, officers, contractors, volunteers, and agents, and each of them, from any loss, liability, damages or costs they may incur, whether caused by the negligence, active or passive, or otherwise while the aforementioned services are being provided. The undersigned understands and agrees that Tayler Kirner, d.b.a. Kirner Marine is not required to provide insurance to cover the undersigned in the event they suffer damage or harm of any sort.