Request Sales or Service

By accepting the estimate for labor or materials (or both) to be provided to you by Contractor (as defined below)(the “Estimate“) electronically online (or by signature in-person or by any other means indicating a clear acceptance of the Estimate), you (the “Customer”), accepts these Terms & Conditions which govern delivery of the labor or materials (or both) described in the Estimate (collectively the “Work”) by Werner Marina, LLC, an Indiana limited liability company (“Contractor”) to Customer. The Estimate and these Terms & Conditions are the “Agreement” for the provision of the Work by Contractor to Customer. Customer and Contractor are each a “Party” and collectively, the “Parties” to this Agreement. The Work will be performed at Customer’s address provided in the in the Estimate, unless otherwise agreed upon between the Parties in writing (including by email). Customer hereby agrees to pay the estimated amounts for the materials and labor for the Work as stated in the Estimate (the “Cost”). Customer agrees to be bound by the Agreement as of the date that Customer accepts the Estimate electronically online (or by any other means) Effective Date. Contractor shall use commercially reasonable efforts to begin and complete the Work on or by any date(s) communicated to Customer in the Estimate or otherwise in writing by Contractor (including by email)(the first day of such date(s) being the “Work Start Date” and the last day of such date(s) being the “Target End Date”). However, Contractor cannot guarantee that the Work will start on the Work Start Date or end on the Target End Date and such date(s) are subject to change by Contractor at any time upon notice to Customer (including by email) due to Force Majeure (as defined in Section 12 below), due to Late Payment (as defined in Section 1 below), or due to scheduling conflicts with Contractor’s other projects. Contractor shall perform the Work with reasonable due care and in a workmanlike manner to generally accepted industry standards. Notwithstanding the immediately preceding sentence, No warranty, express or implied, including, without limitation, any warranty of merchantability or fitness for a particular purpose is given by Contractor in ANY PART OF the Work, except as otherwise expressly provided in the Estimate OR UNLESS PROVIDED BY THE MANUFACTURER OF ANY MATERIALS SUPPLIED WITH THE WORK (IN WHICH CASE, CONTRACTOR SHALL ENDEAVOR TO PASS ANY SUCH WARRANTY THROUGH TO THE CUSTOMER).

1. Payment. Contractor may invoice 50% of the Cost (or some other percentage or portion of the Cost if stated in the Estimate or stated in an invoice created pursuant to the Estimate) (the “Deposit”) before the start of any Work and Customer agrees to pay such Deposit within 7 days of acceptance of the Estimate, or Contractor may cancel the Work and the Agreement upon written notice to Customer (including by email). Contractor may adjust the Cost due to Force Majeure, to any request for modification to the scope of the Work by Customer after the Estimate has been accepted by Customer, or any change or latent condition found in the Premises (as defined in Section 4 below) or other of the Customer’s property or equipment at or on which the Work is to be performed (discovered by and not caused by Contractor). For services included in the Work, including, without limitation, any dredging services, where the Cost has been estimated in advance in the Estimate based on a quantity of material to be removed or added or labor to construct, demolish, or remove any existing material in order to complete the Work, Customer acknowledges that Contractor may adjust the Cost prior to Customer’s final payment of the Cost being due. For example, and without limitation, dredging services are estimate based on estimated material to be removed, which depends on the estimated area to be excavated and the soil and water depth at the time the Work is performed, which may vary from what is known or estimated at the time the Estimate is created. Thus, for dredging services, the final Cost may be adjusted upwards based on the final number of barge loads of soil actually taken if more is taken than estimated. Contractor shall notify Customer of any adjustment to the Cost pursuant to the immediately preceding two sentences in writing (including by email) and Customer agrees to pay such adjusted Cost unless Customer disputes, in good faith, the reasonableness of such adjustment within 48 hours of receipt of notice of such adjustment. In the event Customer disputes the reasonableness of an adjustment to the Cost pursuant to the immediately preceding sentence, (i) and the Work is complete, Customer agrees to pay the full amount of the Cost as originally stated in the Estimate upon the completion of the Work and Customer shall pay the remaining balance of the adjustment to the Costs within 7 days of resolution of the dispute between the Parties, or (ii) if the Work is not yet complete, Contractor shall cease performing the Work until such dispute can be resolved between the Parties (in either case the Parties agree to undertake discussion to resolve such dispute reasonably expediently and in good faith to resolve such dispute within 14 days after Customer sends Contractor notice of such dispute). The balance of the Cost (after deduction of any Deposit paid by Customer and any adjustment is made pursuant to this paragraph) is due immediately upon completion of the Work (of which Contractor shall notify Customer in writing [including by email]). In consideration of Contractor’s administrative burden of collecting from Customer any payment not made on or by the due date expressed in this Agreement (“Late Payment”), Contractor may assess a late fee of the greater of 10% of the Late Payment amount or $50 if any Late Payment remains unpaid five or more days after the original due date of such Late Payment. In addition, Customer agrees to pay interest to Contractor 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 five days or more after the original due date of such Late Payment. Customer shall pay any taxes or governmental fees (including, without limitation, sales tax and permitting or license fees attributable to the Work) whether expressed in the Estimate or not that are chargeable against Contractor for any part of the Work (and such taxes or fees shall be considered part of the Cost and may be added or adjusted later pursuant to the Cost-adjustment provisions of this paragraph).

2. Termination or Cancellation. Contractor may terminate this Agreement immediately (i) if Customer materially breaches this Agreement, (ii) if Customer fails to make payment or makes a Late Payment, or (iii) upon notice to Customer due to an event of Force Majeure that Contractor deems to render continuance of this Agreement commercially impracticable or impossible for Contractor or potentially unsafe to Customer or Contractor (or Contractor’s employees or subcontractors). Upon termination or expiration of this Agreement by Contractor, except if due to Customer’s Late Payment or failure to pay any portion of the Cost when due, Contractor shall return to Customer any portion of the Cost that was already paid deducting any portions of the Work (material or labor) which had already been delivered to Customer as of the expiration or termination date. Contractor may retain any portion of the Cost already paid by Customer as liquidated damages in the event Contractor terminated this Agreement under romanettes 2(i) Customer may only terminate this Agreement early either (i) by giving Contractor at least 2 weeks written notice prior to the Work Start Date in writing (e-mail included), in which case Customer will be charged a cancellation fee as liquidated damages equal to $100 plus the portion of the Cost of any portion of the Work delivered to the Customer or ordered by Contractor (without a right of return and refund) as of the date of such cancellation, if any (“Cancellation Fee”) or (ii) immediately upon notice to Contractor if Contractor materially breaches this Agreement and fails to cure such breach within 10 days after Contractor’s receipt of Customer’s notice of such breach.

3. Substitution. Contractor reserves the right to substitute the materials included as part of the Work to reasonably equivalent materials. Nothing in this Agreement guarantees Customer a particular model or type of material or guarantee that future work or materials will be made available to Customer after the term of this Agreement.

4. Risk of Injury and Loss. Customer 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 of Customer or Customer’s invitees (which include any other residents of, or visitors to, the Premises) whether occurring on or around where the Work is performed (collectively “Premises”), from any cause whatsoever, is assumed by Customer. The exclusive right to possession and control of all items of personal property of Customer or Customer’s invitees placed in, on or around Premises remains with Customer. Contractor assumes no duty with respect to care, possession, or control of any personal property or to the bodily safety of Customer or Customer’s invitees. Customer (on behalf of itself and Customer’s invitees) expressly assumes the risk inherent in being present in or around the Premises during the Work being performed by Contractor. Customer recognizes and agrees that it shall be Customer’s own obligation to insure the personal property of Customer and Customer’s invitees located on Premises and for Customer and Customer’s invitees to be responsible for and carry personal health insurance to cover any personal injury suffered by Customer or Customer’s invitees on the Premises.

5. Indemnification. Consistent with Section 4, Customer hereby indemnifies Contractor and Contractor’s parent company, affiliates, successors, lenders, and assigns (and all of their employees, subcontractors, equity holders, agents, managers, advisors, successors, lenders, or assigns) against all damages, claims, demands, disputes, losses, or causes of action (each a “Claim”) related to the personal property of, or any bodily injury or death to, Customer or Customer’s invitees at the Premises arising from Customer’s or Customer’s invitees’ use of the Premises or due to Contractor’s performing the Work on the Premises, whether caused by the negligence of Contractor or Contractor’s employees, subcontractors, equity holders, agents, managers, advisors, successors, lenders, or assigns. Customer agrees that Customer shall submit any Claim for which an indemnification is given pursuant to the immediately preceding sentence to Customer’s or Customer’s invitee’s applicable property or medical insurance, which insurance shall be primary and non-contributory and to which Customer shall waive any right of subrogation. Contractor hereby indemnifies Customer against any Claim related to the personal property of, or any bodily injury or death to, Contractor or Contractor’s employees or subcontractors performing the Work, except if due to Customer’s gross negligence or willful misconduct.

6. 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.

7. Entire Agreement. This Agreement, including the Estimate, and any other writings executed between the Parties or written notices sent pursuant to the terms of this Agreement constitute the entire agreement between the Parties relating to the subject matter of this Agreement, and no Party shall be liable or bound to the other Party 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 in regard to the Work, which will have no further force or effect.

8. Modifications of Agreement. Any modification, alteration, amendment, change, or extension of any term, provision, or condition of this Agreement must be made by written amendment or addendum to this Agreement and must be signed by the Contractor to be valid, except as otherwise expressly provided in this Agreement. No oral modification, alteration, amendment, change, or extension of any term, provision, or condition of this Agreement is permitted at any time and any such attempt at an oral modification of this Agreement shall be void and of no force and effect upon utterance.

9. Binding Effect. The terms of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties. Nothing in this 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 in this Agreement. Customer acknowledges that Customer has read this Agreement in its entirety and has had an opportunity to review all terms of this Agreement with legal counsel of Customer’s choosing, and fully understands and agrees to be bound by all the terms, conditions, and obligations contained in and arising under this Agreement.

10. Assignment. Customer may not sublicense nor assign this Agreement to any other person. Contractor may assign this Agreement at any time to (i) an affiliated entity, (ii) purchaser of Contractor’s assets or membership interests (or both), or (iii) any lender of Contractor.

11. Force Majeure. In no event, shall Contractor be liable to Customer with respect to any failure or delay by Contractor to begin or complete the Work to perform any other duty or obligation under this Agreement that is attributable to an act 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 similar events beyond Contractor’s reasonable control (“Force Majeure”). Contractor 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 Contractor shall resume performance of the duty or obligation delayed by the event of Force Majeure as soon as is reasonably commercially practicable.

12. 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.

13. Notices. The Parties agree that notices sent to the e-mail or mailing addresses provided by each Party in the Estimate or otherwise in writing to the other Party shall be their respective addresses for notices and shall be effective on the date that receipt of any such notice is reasonably confirmed as having been received (or in the case of mail or overnight courier) rejected by the receiving Party or five days after having been sent, if no such receipt can be reasonably obtained.

14. 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.

15. 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.

16. Non-waiver. The failure of Contractor 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 Contractor’s right to enforce the same in accordance with this Agreement.

17. 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.

18. Conflict. In the event there is any conflict between any term in this Agreement and a term in any other document or notice referenced in or made part of this Agreement (or both), the conflicting term as stated in the body of this Agreement shall control and supersede the conflicting term in that other document or notice, except to the extent this Agreement expressly allows for any such document or notice to modify a portion of this Agreement or except any conflicting term in any amendment to this Agreement executed between the Parties after the Effective Date, in which case the conflicting term in such document, notice, or amendment shall control.