1. BIRON INC DBA MOORING PRODUCTS WORLDWIDE (BI/MPWW) RESPONSIBILITIES.
    • Commencement. BI/MPWW’s obligations to perform the services provided for in this agreement shall not begin until this agreement has been fully executed, and BI/MPWW has received both a copy thereof, as well as the entire initial payment or deposit, if any.  Notwithstanding anything to the contrary herein, Client’s execution of this agreement shall serve as a notice that BI/MPWW may proceed with providing the services detailed in this agreement.
    • Additional Services. Any services not specifically included in this agreement, and any services made necessary as a result of Client and/or Consultant directed changes to services it has previously approved or to other factors affecting the feasibility of the previously approved services, including revisions to BI/MPWW’s deliverables, furnished by BI/MPWW shall be under separate agreement.
    • Approval of Services. Where Client’s intermediate approval of the services being provided pursuant to this agreement is required, BI/MPWW will proceed with providing those services only after having received (I) Client’s written approval of the services as furnished; and (ii) written authorization from Client to proceed with providing subsequent portions of those services, otherwise, unless specifically stated, this executed agreement constitutes the approval for BI/MPWW to proceed with providing the services outlined in this agreement.
  2. CLIENT’S RESPONSIBILITIES.
    • Site Access. Client shall provide for BI/MPWW’s right to access the site of the project as BI/MPWW requires for its performance of the services set forth herein. 
    • Information. Client shall furnish BI/MPWW with applicable project, site, and legal information, which may include legal descriptions, maps, land surveys by professional land surveyors who are licensed or registered under the law of the jurisdiction in which the project is located, drawings and specifications, schedules, rights-of-way, easements, encroachments, zoning, covenants, and deed or other restrictions.
    • Testing. Client shall provide independent testing services when deemed necessary to determine site conditions such as soil and subsoil conditions, water, pollution, and hazardous waste presence and characteristics.
    • Reliance. BI/MPWW shall be entitled to rely on the accuracy and completeness of the information, test results, and work product provided by Client and Client’s consultants.  BI/MPWW shall not be responsible for calculations, specifications, or designs based on erroneous, inaccurate, or incomplete information provided by Client.
    • Comments and Responses. Client’s decisions, approvals, reviews, and responses shall be communicated to BI/MPWW in a timely manner so as not to delay the performance of the services and/or any additional services.  Comments from Client shall be a consolidation of all comments of interested user groups or entities to provide clear direction to BI/MPWW and to avoid delays.
    • Notice of Nonconformance. If Client observes or becomes aware of any errors, omissions or inconsistencies in any of BI/MPWW services and/or deliverables, or any fault or defect in the project, Client shall promptly give written notice thereof to BI/MPWW.
  3. PAYMENT.
    • Any initial payment or deposit received by BI/MPWW shall be credited to Client’s account at or before final payment.
    • Client’s payment for BI/MPWW’s charges is due upon Client’s receipt of the invoice. Payment shall be in U.S. currency and shall not be contingent upon Client’s receipt of funds from any third party or approval of work done by others (e.g., engineers, architects, consultants, contractors, etc.).
    • Notwithstanding anything herein to the contrary, Client’s non-payment shall be grounds for suspension of services or termination of this Agreement. BI/MPWW shall have no liability to Client for any delays caused by a suspension due to overdue payments. 
    • Any payments made by a credit card will be assessed a surcharge of 3.0% or the associated interchange fee incurred by BI/MPWW, whichever is greater.
    • In the event any payment is not received by us after becoming due, we may (i) charge interest on any such unpaid amounts at up to the maximum amount permitted under applicable law, from the date such payment was due until the date paid; (ii) charge you for the fees and costs incurred with respect to collecting the debt (including reasonable attorney’s fees and legal costs); (iii) suspend performance of some or services until you are current on all payments owed to us; and/or (iv) immediately, or at such other time during the delinquency as we determine appropriate, terminate the Agreement.
    • An express mechanic’s lien is hereby acknowledged on the aforementioned project to secure full payment due upon completion
    • Client hereby grants full authority to BI/MPWW to remove their product in the event of default or non-payment.
  4. WARRANTY
    • All products carry a one (1) year part and labor warranty to the original purchaser, except in the case of misuse, abuse, neglect, accident, alteration, unauthorized repair, overloading and improper load distribution.
    • Damage resulting from the natural elements acting upon the product is the responsibility of the client, not excluding wind storms or hurricanes.
    • Electrical components carry a full factory warranty.
  5. INDEMNIFICATION; LIMITATION OF LIABILITY.
    • Indemnification.
      • Client and BI/MPWW agree to indemnify and hold harmless the other, and their respective officers, directors, members, partners, employees, successors, assigns, devises, representatives, and agents from and against all claims, damages, liabilities, losses, fines, penalties, judgments, and expenses (including reasonable attorney’s fees) to the extent caused by the indemnifying party’s negligent acts, errors, or omissions.
      • Notwithstanding anything herein to the contrary, BI/MPWW shall have no liability to Client, or to anyone claiming through Client, for any claims, damages, liabilities, losses, fines, penalties, judgments, and expenses resulting or arising from the services provided to the extent that the use of the final product was unlicensed, or the product had been materially modified without BI/MPWW’s written consent, and Client, to the fullest extent permitted by law, agrees to indemnify and defend BI/MPWW from and against any and all such resulting or arising claims, damages, liabilities, losses, fines, penalties, judgments, and expenses.
      • Since it would be unfair for BI/MPWW to be exposed to liability for its failure to perform a service that Client has either refused to authorize or has instructed BI/MPWW not to perform, Client hereby waives all claims against BI/MPWW and agrees to defend, indemnify and hold BI/MPWW harmless from claims or liability for injury or loss allegedly arising from BI/MPWW’s failure to perform a service that Client has either refused to authorize or has instructed BI/MPWW not to perform
    • Waiver of Subrogation. To the extent damages are covered and paid by property insurance during the project, Client and BI/MPWW waive all rights against each other and against the contractors, consultants, and agents of the other for damages.  Client and BI/MPWW, respectively, shall require of their contractors, consultants, and agents similar waivers in favor of the other parties enumerated herein.
    • Waiver of Consequential Damages. Client and BI/MPWW waive claims against each other for consequential and/or special damages arising out of or relating to this Agreement.  This mutual waiver includes (I) damages incurred by Client for rental expenses, for holding costs, for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and (ii) damages incurred by BI/MPWW for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit except anticipated profit arising directly from the services.  This mutual waiver is applicable, without limitation, to all consequential damages due to either party’s termination in accordance with Section 6 hereof.
  6. DISPUTE RESOLUTION.
    • Client and BI/MPWW shall endeavor to resolve any claims or disputes between them arising out of relating this Agreement or the breach thereof (“Claims”) by mediation which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect. Requests for mediation shall be made in writing to the other party and shall be a condition precedent to institution of a legal or equitable proceeding.  The parties shall conclude the mediation within sixty (60) days of the request.  The parties shall share the mediator’s fee equally.  The mediation shall be held at a location mutually agreed upon.  Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.
    • For any Claims not resolved at mediation, the method of binding dispute resolution shall be as follows:

☐ Litigation in a court of competent jurisdiction in located in Broward County, Florida.

☒ Arbitration pursuant to Section 9.3 hereof.

  • If the parties have selected arbitration in the preceding section hereof, claims between the parties that are not resolved by mediation shall be decided by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then in effect. All arbitration hearings shall be conducted in Broward County, Florida, unless the parties agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law.  Written notice of the demand for arbitration shall be served on the other party to the Agreement and with the American Arbitration Association.  The demand shall be made within a reasonable time after the Claim has arisen.  ln no event shall the demand for arbitration be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations.  The award rendered by the arbitrator shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.
  • Unless otherwise agreed in writing, BI/MPWW agrees to continue to perform its services during any dispute resolution proceedings. If BI/MPWW continues to perform, Client shall continue to make payments in accordance with this Agreement for amounts not in dispute.
  • Nothing in these provisions shall limit rights or remedies not expressly waived under applicable lien laws.
  1. SUSPENSION; TERMINATION.
    • This Agreement may be terminated by either party hereto on seven (7) days’ written notice should the other party fail substantially to perform in accordance with its terms through no fault of the party initiating the termination, provided the defaulting party has not cured or in good faith diligently commenced to cure the breach during the 7-day notice period.
    • Client’s failure to make payments to BI/MPWW in accordance with the provisions of this Agreement shall be deemed a substantial failure to perform and a cause for termination; however, in this circumstance BI/MPWW, at its option, may elect to suspend its services on seven (7) days’ written notice to Client. BI/MPWW shall have no liability to Client for any delays caused by a suspension under this provision.
    • If Client suspends BI/MPWW’s services for any reason, BI/MPWW shall be compensated for all services performed to that date, and BI/MPWW shall have no liability to Client for any delays caused by Client’s decision to suspend BI/MPWW’s services.
    • When Client authorizes BI/MPWW to resume any services that Client suspended, BI/MPWW shall be compensated for expenses incurred due to the interruption and resumption of the suspended services, and BI/MPWW’s compensation under this Agreement, and the any schedule of services to be performed hereunder, shall be equitably adjusted.
    • A suspension of the services to be performed pursuant to this Agreement by either party for more than thirty (30) days may, at BI/MPWW’s option, be deemed grounds for termination of the Agreement.
    • If termination is not due to the fault of BI/MPWW, Client shall pay, in addition to the compensation and reimbursable expenses due at the time of the termination, all actual costs and expenses reasonably incurred by BI/MPWW in connection with such termination.
    • Either party may terminate this Agreement for convenience and without cause with seven (7) days’ written notice. If terminated by the client, all compensation and reimbursable expenses due at the time of termination must be paid in full.
  2. STATUTORY NOTICES.
    • PURSUANT TO § 558.0035 OF THE FLORIDA STATUTES, THE EMPLOYEES AND AGENTS OF BI/MPWW MAY NOT BE HELD INDIVIDUALLY LIABLE FOR NEGLIGENCE WITH RESPECT TO THE PERFORMANCE OF ANY SERVICE PURSUANT TO THIS AGREEMENT.
    • AS SET FORTH IN § 558.005 OF THE FLORIDA STATUTES, ANY CLAIMS FOR CONSTRUCTION DEFECTS ARE SUBJECT TO THE NOTICE AND CURE PROVISIONS OF CHAPTER 558, FLORIDA STATUTES.
  3. GENERAL.
    • Please note that Permitting, Civil, Structural, Mechanical, Electrical & Plumbing Engineering are not included in this contract and shall be by others.
    • BI/MPWW is not responsible for wake damage caused by other watercraft.
    • Entire Agreement; Integration; Modifying. This Agreement constitutes the entire understanding between BI/MPWW and Client with respect to the project.  It supersedes all prior negotiations and agreements for the Project.  Subsequent provisions of any construction contracts, subcontracts, general conditions or other project documents shall not supplement or supplant the terms and conditions of this agreement or otherwise extend BI/MPWW’s obligations beyond those created by this Agreement.  An amendment of this Agreement may only be made in writing, signed by the party to be charged.
    • Assignment. Neither party hereto shall assign their interest in this Agreement without the express written consent of the other, except as to the assignment of proceeds.
    • Successors and Assigns. All terms, covenants and conditions to be observed and performed by the parties hereto shall be applicable to and binding upon their respective heirs, administrators, executors, and permitted successors and assigns.
    • Force Majeure. Either party hereto, as applicable, shall be relieved of its obligations hereunder in the event and to the extent that performance hereunder is delayed or prevented by any cause beyond its control and not caused by the party claiming relief hereunder, including, without limitation, acts of God, public enemies, war, insurrection, acts or orders of governmental authorities, fire, flood, explosion, pandemics, or the recovery from such cause (“Force Majeure”).  The parties agree to make all reasonable efforts to mitigate the delays and damages of Force Majeure.
    • No Third-Party Beneficiaries. Nothing in this Agreement shall create a contractual relationship with, an obligation to, or a cause of action in favor of, any third-party against either Client or BI/MPWW.
    • Section Captions and Numbers. The section captions and numbers are for convenience of reference only and in no way used to construe or modify the provisions in this Agreement.
    • Severability. The parties hereto intend this Agreement be legally valid and enforceable in accordance with all of its terms and provisions to the fullest extent permitted by law.  If any term or provision hereof is found to be invalid or unenforceable, the parties agree that such term or provision shall be stricken from this Agreement, and the remaining terms and provisions shall, to the extent permitted by law, remain in full force and effect.
    • Governing Law. This Agreement is made and entered into within, and shall be governed by, construed, interpreted and enforced in accordance with, the laws of the State of Florida, without regard to the principles of conflicts of laws.  Should any provision of this Agreement require judicial interpretation, it is agreed by the parties hereto that the court interpreting it shall not apply a presumption that any such provision shall be more strictly construed against the party who itself or through its agent prepared the same, as all parties have participated in the preparation of the provisions of this Agreement and that all terms, covenants and conditions were negotiable. 
    • BI/MPWW and Client each warrant and represent that it is free to enter into and fully perform this Agreement, that all required authorizations have been procured prior to execution of this Agreement, and that this Agreement is signed on its behalf by an authorized person thereof.
    • Any failure by either party hereto to enforce any provision of this Agreement shall not constitute a waiver of such provision or prejudice the right of either party to enforce such provision at any subsequent time.

Effective 7/1/2025. Subject to change without notice.

 

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