Winter Storage & Service Request Order Form

Terms & Conditions

You (the “Licensee”) and Werner Marina, LLC d/b/a Lake Lemon Marina (“Licensor”), an Indiana limited liability company, hereby agree that the following Terms and Conditions govern any of the winterization, winter storage, shrink wrap or other services (“Winter Services”) you order on this form and any Space (as defined below) provided by Licensor for winter storage of your Watercraft (as defined below). The term of this Agreement (the “Term” or “Winter Season”) begins on the date your Watercraft first receives any of the Winter Services ordered under this agreement or is placed in the Space (as defined below) after you submit this order form, whichever happens sooner, and ends on the soonest date (i) your Watercraft is de-winterized by Licensor and re-enters Lake Lemon, (ii) Licensee attempts to de-winterize the Watercraft without engaging Licensor or by a third-party or puts the Watercraft in a body of water without Licensor preforming de-winterization, or (iii) Licensee otherwise removes the Watercraft from the Marina (as defined below) grounds or other location in which the Space or Winter Services are being provided by Licensor (“Expiration Date”), which, in no event, shall be later than April 21, 2023 (“Cut-off Date”). You agree that by clicking the check box below these Terms & Conditions you are executing this order form and Terms & Conditions as if you signed a printed agreement in writing.

1. Services / License. If you select a Winter Storage Package, Licensor hereby grants Licensee a revocable license to have Licensee’s watercraft that is specified in this form (“Watercraft”) during the current Winter Season stored in an outdoor space determined in Licensor’s sole discretion (the “Space”), which is located within Licensor’s leasehold property at the address shown in the header of this Agreement (“Marina”), for a term beginning on the Commencement Date and ending on the Expiration Date, unless otherwise earlier terminated or canceled pursuant to this Agreement, (“Term”) for the sole purpose of shrink wrapping and storing the Watercraft for the winter season (“Purpose”). Licensee may not use the Space for any other purpose except the Purpose and shall only use the Space and the Premises (as defined in Section 7) pursuant to the Lake Lemon Marina Rules (“Rules”), which are published on the World Wide Web at https://lemonmarina.com/rules. Licensor reserves the right to revoke the Space license granted to Licensee under this Agreement for any violation of the Rules, which are subject to reasonable changes at any time by Licensor. Licensor also may refuse, for any or no reason to perform any of the Winter Services selected on this form. The Winter Services will be performed by the Marina in a commercially reasonable, workmanlike manner. Notwithstanding the immediately preceding sentence, THE SPACE AND THE WINTER SERVICES ARE PROVIDED TO LICENSEE AS-IS AND WITHOUT ANY WARRANTY, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. LICENSEE ACKNOWLEDGES THAT THE WINTER SERVICES MAY BE PERFORMED BY THIRD-PARTY CONTRACTORS OF LICENSOR, IN LICENSOR’S SOLE DISCRETION.
2. Fees. In consideration for granting the Space license to Licensee (if selected) and any of the Winter Services selected, Licensee shall pay to Licensor the fees stated on this form or quoted later and accepted and paid for by Licensee (“Fees”). For any Watercraft remaining in the Space after the Cut-off Date, the Licensee agrees to pay a $10 per day Watercraft storage fee until the day that Licensee removes the Watercraft from the Space.
3. Payment. If you select a Winter Storage Package, Licensee shall pay to Licensor a non-refundable deposit on the Fees immediately upon acceptance of this Agreement by Licensor equal to $100 (“Deposit”) to hold the Space for Licensee. Licensee shall then pay any remaining balance of the Fees on the date the Winter Services are completed by Licensor (e.g., the date the Watercraft is winterized and/or shrink-wrapped and made ready for winter storage by Licensor and NOT the end of the Term). In consideration of Licensor’s administrative burden of collecting from Licensee any payment not made on or by the due date expressed in this Section 3 (“Late Payment”), Licensor may assess a late fee of the greater of 10% of the Late Payment amount or $50. In addition, Licensee agrees to pay interest to Licensor in the amount of 18% per annum (or the maximum allowed by law, if less) compounded daily for any Late Payment that remains unpaid for 15 days or more after the due date expressed in this Section 3. Any taxes or governmental fees not otherwise expressed in this Agreement but that are chargeable against Licensor for the license of the Space or provision of the Winter Services shall be added to any payment amount and paid by Licensee.
4. Termination or Cancellation. Licensor may terminate this Agreement immediately upon notice to Licensee (i) for any violation of the Rules in any way related to Licensee or the Watercraft, (ii) if Licensee has chosen to store the Watercraft in the Space and has chosen to have the Watercraft winterized by Licensor as part of the Winter Services and after such winterization is performed by Licensor the Licensee attempts to de-winterize the boat itself or via a third-party or otherwise attempts to put the Watercraft in a body of water before Licensor is given an opportunity to de-winterize the Watercraft, (ii) if Licensee otherwise breaches this Agreement and fails to cure such breach within 5 days after receiving notice of such breach from Licensor or, if the breach is Late Payment, within 5 days of the original due date, or (iii) upon notice to Licensee due to an event of Force Majeure (as defined in Section 16) that Licensor deems to render continuance of this Agreement commercially impracticable or impossible for Licensor. Licensor shall retain any payments made by Licensee prior to termination of this Agreement under part (i) or (ii) of the immediately preceding sentence as liquidated damages, which is a minimum amount that does not limit all damages or equitable relief to which Licensor shall still be entitled at law, equity, or under this Agreement. For termination of this Agreement by Licensor due to Force Majeure, Licensor shall only return to Licensee any pro-rata portion of the Fees minus the Deposit, for the remaining period of the Term.
5. Relocation. Licensor reserves the right, at Licensor’s expense, to relocate the Space for Licensee’s Watercraft or any other Winter Services to a reasonably equivalent Space at the Marina (which shall become the Space under this Agreement) or, for Winter Services, other service location at any time during the Term. Nothing in this Agreement guarantees Licensee a particular location for the Space or the Winter Services either before, during, or after the Term nor does this Agreement guarantee that a Space will be made available to Licensee after the Term of this Agreement in any future season. Licensee agrees that the Space may be located outside of the Marina grounds.
6. Effect of Termination. On or by the Expiration Date or earlier termination of the Term pursuant to this Agreement, Licensee shall remove or arrange for the removal (including by contracting with Licensor for Watercraft removal) the Watercraft and any other personal property of Licensee or Licensee’s invitees from the Premises (as defined in Section 7), unless Licensee has separately contracted with the Licensor for a Wet or Dry Dock for the following boating season, in which case the Licensee shall be responsible for moving the Watercraft into the Wet or Dry dock space separately licensed by Licensee on or by the Expiration Date.
7. Risk of Injury and Loss. Licensee recognizes and agrees that all risk of personal injury to, or loss, theft, damage or destruction, partial or complete, to any and all items of personal property (including, without limitation, the Watercraft) of, Licensee or Licensee’s invitees whether occurring on or around the Space, anywhere within the Marina grounds, or within external premises where any Winter Service is provided by Licensor (collectively “Premises”) or on Lake Lemon, from any cause whatsoever, is assumed by Licensee. Licensee expressly agrees that Licensor shall not be responsible for any damage to the Watercraft or any personal property contained therein due to an event of Force Majeure, theft, or other casualty. The exclusive right to possession and control of all items of personal property of Licensee or Licensee’s invitees placed in, on or around Premises remains with Licensee, unless Licensee fails to remove any such personal property from the Premises within 7 days after the Expiration Date or date this Agreement is otherwise terminated or canceled pursuant to Section 4, in which case Licensor may take possession of any such item, including, without limitation any Watercraft or personal property (or both) left on the Premises, and dispose of such items of personal property as Licensor sees fit and legally may without any liability to Licensor or Licensor’s invitees. Licensor assumes no duty with respect to care, possession, or control of any personal property or to the bodily safety of Licensee or Licensee’s invitees. Licensee (on behalf of itself and Licensee’s invitees) expressly assumes the risk inherent in operating any watercraft or being present in or around the Premises, including the surrounding Lake Lemon. Licensee recognizes and agrees that it shall be Licensee’s own obligation to insure the personal property of Licensee and Licensee’s invitees located on Premises and for Licensee and Licensee’s invitees to be responsible for and carry personal health insurance to cover any personal injury suffered by Licensee or Licensee’s invitees on the Premises or on Lake Lemon.
8. Indemnification. Consistent with Section 7, Licensee hereby indemnifies Licensor and Licensor’s successors, lenders, and assigns against all loss, damage, or injury to persons or property arising from any damages, claims, demands, disputes, or causes of action arising from Licensee’s or Licensee’s invitees’ use of the Premises, whether caused by the negligence of Licensor or Licensor’s subcontractors, agents, employees, successors, lenders, or assigns. Furthermore, Licensee hereby indemnifies Licensor against, and shall waive any right of subrogation with any applicable insurer for Licensor’s claims arising from, any damage to the Space or Marina grounds arising in any way from Licensee’s or Licensee’s invitees’ use of the Space or operation of any Watercraft in or around the Marina, excluding normal wear and tear, including, without limitation, due to any Watercraft-related accident or the performance of the Winter Services.
9. Insurance. Licensee shall have and maintain in effect during the Term an “all-risk” insurance policy in an amount at least equal to the actual value of the Watercraft and the Watercraft’s contents. Licensee shall submit a certificate of insurance exhibiting the insurance required under this Section 9 on or by the Commencement Date or thereafter promptly upon Licensor’s request.
10. Security. Licensee acknowledges that Licensor has, and shall have, a lien upon, and Licensee hereby grants to Licensor a security interest in, the Watercraft and the appurtenances and contents and all proceeds of such Watercraft as security for any unpaid sums due to Licensor for the use of the Space and Winter Services, or for any damage or liability to Licensor or patrons of the Marina or their property caused in whole or in part by Licensee, Licensee’s Watercraft or Licensee’s invitees or for any indemnity or other obligations owed by Licensee to Licensor. Licensee agrees that Licensor may place upon the Watercraft or Lift its contents, appurtenances and equipment, additional liens of whatever nature or security interests, for non-payment of any Fees required pursuant to this Agreement, supplies, necessaries or other services or goods furnished by Licensor to the Licensee or the Watercraft. Licensee agrees that Licensor may file or record financing statements or other instruments or documents to perfect such liens and security interests. In the event Licensor employs counsel or a collection agency to collect any amounts due under this agreement, to otherwise enforce the terms of this Agreement, or to foreclose a maritime lien, possessory lien or other statutory lien or security interest, Licensee agrees to pay to Licensor all costs of collection or enforcement, including reasonable attorney’s fees and expenses and cost of any legal action or other proceeding, whether or not suit is brought.
11. Access Credentials. If Licensee receives an Access Card or Mobile Access from Licensor as part of the Winter Services or another license or service contract between Licensor or License (whether expired, terminated, or not) in order to enter the Marina during or outside of the regular business hours of the Marina, Licensee agrees not to ever let any other person besides the Licensee to use the Access Card or Mobile Access. Licensee shall itself only use such Access Card or Mobile Access outside of the Marina’s regular business hours to inspect the Watercraft, but not disturb the Winter Services performed by the Licensor, and not for any other purpose. All Access Cards or Mobile Access credentials provided by Licensor to Licensee shall, at Licensor’s option, be returned by Licensee to Licensor, destroyed by Licensee, or de-activated by Licensor on the Expiration Date or earlier termination or cancellation date of the term of this Agreement. Licensor reserves the right to restrict the hours that any Access Card or Mobile Access may access the Marina grounds at any time for any or no reason and revoke and recover any Access Card or Mobile Access that Licensor determines has been used in violation of this Agreement or the Rules.
12. Governing Law and Waiver. This Agreement and all rights and remedies arising under this Agreement are governed by the laws of the State of Indiana and both parties agree to the exclusive jurisdiction of the state and US federal courts located in Monroe County, Indiana for any action that arises related to this Agreement. FURTHERMORE, BOTH PARTIES HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY AND AGREE TO A BENCH TRIAL, ADJUDUCATED BY A JUDGE OR OTHER ARBITER, FOR ANY ACTION ARISING BETWEEN THE PARTIES IN ANY WAY RELATED TO THIS AGREEMENT.
13. Entire Agreement. This Agreement, including the order form to which these terms and conditions refer, and the Word Wide Web pages referenced in this Agreement constitute the entire agreement between the parties to this Agreement relating to the subject matter of this Agreement, and no party to this Agreement shall be liable or bound to the other party to this Agreement in any manner by any warranties, representations, or covenants except as specifically set forth in this Agreement. This Agreement supersedes all prior agreements, conditions, understandings, promises, warranties, and representations, which will have no further force or effect.
14. Modifications of Agreement. Any modification, alteration, amendment, change, or extension of any term, provision, or condition of this Agreement will be made by written amendment or addendum to this and must be signed by the Licensor to be valid. No oral modification, alteration, amendment, change, or extension of any term, provision, or condition of this Agreement will be permitted.
15. Binding Effect. Terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties to this Agreement. Nothing in Agreement, express or implied, is intended to confer upon any third-party any rights, remedies, obligations, or liabilities under or by reason of Agreement, except as expressly provided herein. This Agreement may only be modified or altered by the express written consent of the parties to this Agreement. Licensee acknowledges that he/she has read this Agreement in its entirety and has had an opportunity to review such terms and conditions with legal counsel of his/her choosing, and fully understands all the terms, conditions and obligations contained and arising under this Agreement, and agrees to be bound by all the terms, conditions and obligations contained herein and arising under this Agreement.
16. Assignment. Licensee may not sublicense nor assign this Agreement, including, without limitation, Licensee’s license to use the Space or any Winter Services, to any other person without written consent of Licensor. Licensor may assign this Agreement at any time to (i) an affiliated entity, (ii) purchaser of Licensor’s assets or membership interests (or both) that include the Space or the relevant Winter Services (or both), or (iii) any lender of Licensor.
17. Force Majeure. In no event, shall Licensor be liable to Licensee with respect to any failure or delay by Licensor to provide the Space, the Winter Services, or damage to the Watercraft or any personal property in the Watercraft, or to perform any other duty or obligation under this Agreement that is attributable to acts of God, war, natural disaster, changing of the water level of Lake Lemon by the LLCD or City of Bloomington, civil disturbances, work stoppages, power failures, fire, pandemics, general shortages in the availability of materials, governmental (including without limitation, the LLCD and City of Bloomington) orders, or other events beyond Licensor’s reasonable control (“Force Majeure”). Licensor shall be excused from performing any duty or obligation owed under this Agreement due to an event of Force Majeure only for as long as the event of Force Majeure continues and when the event of Force Majeure ends the Licensor shall resume performance of the duty or obligation delayed by the event of Force Majeure as soon as is reasonably commercially practicable.
18. Compliance with Laws and Regulations. Each party to this Agreement will comply with all applicable federal, state, county, and municipal laws, ordinances, codes, rules, and regulations, as the same may be amended from time to time, that in any way affect that party’s performance of this Agreement, including, without limitation, Licensee shall comply with all LLCD, City of Bloomington, and Indiana Department of Natural Resources rules and regulations for use of Lake Lemon and the forestry area immediately surrounding the Marina.
19. Notices. The parties agree that notices sent to the e-mail or mailing addresses provided by each party in the header or body of this Agreement shall be their respective addresses for notices and shall be effective on the date that receipt is reasonably confirmed or received or five days after having been sent, if no such receipt can be reasonably obtained.
20. No Party Deemed Drafter. No party is the “drafter” of this Agreement. This Agreement is the product of arm’s length negotiations between the parties to this Agreement and has been drafted jointly by the Parties.
21. Severability. If any provision of this Agreement is declared invalid or unenforceable by a court or an arbitrator, such invalidity or unenforceability will not affect the validity or enforceability of the remaining terms of this Agreement.
22. Non-waiver. The failure of Licensor to insist upon the strict compliance with any term, provision, or condition of this Agreement will not constitute or be deemed to constitute a waiver or relinquishment of Licensor’s right to enforce the same in accordance with this Agreement.
23. Headings. The headings of paragraphs in this Agreement are for convenience only. They form no part of this Agreement and will not affect its interpretation.
24. Conflict. In the event there is any conflict between any term in this Agreement and a term in any World Wide Web page referenced in and made part of this Agreement, the conflicting term as stated in the body of this Agreement shall control and supersede the conflicting term in that external resource.