KOMPLETELY KUSTOM MARINE, INC.

SERVICE TERMS AND CONDITIONS

1.         DEFINITIONS

            1.1       “Communication” shall mean any and all form(s) of communication via any media or delivery type including but not limited to, verbal, written, electronic, text, instant message or the like.

            1.2       “Customer” shall mean any individual, entity, person and/or persons, including a beneficial interest holder, vessel owner, agent of owner(s), sales person, yacht broker, captain, insurer, and/or any other person or entity representing any interest of any owner or insurer of the vessel who requests services, labor, parts, and/or equipment via any Communication method or as contained in an estimate and/or work order and whose name or identity is referenced on the estimate and/or work order if reduced to writing.

            1.3       “Emergency Service” shall mean any service, Goods, labor, or act performed by KKM on behalf of Customer(s) outside of normal business hours of 9AM-5PM Eastern Standard or Daylight Savings time.

            1.4       “Equipment” shall mean the Customer’s vessel(s), tender, trailer, engine, personal watercraft, including, but not limited to, equipment, systems, subsystems, and other personalty for which KKM agrees to provide services, parts, labor, and/or materials.  Equipment shall also refer to any automobile, recreational vehicle, motorcycle, scooter or any motorized electric or battery powered means of transportation presented by Customer(s) to KKM for service.

            1.5       “Estimate” shall mean any Communication provided to Customer(s) concerning any and all work, goods, services, labor, parts or equipment, or consulting to be provided to or on Customer(s) behalf. 

            1.6       “Goods” means any and all products or parts, equipment, and/or consultation services provided by or sold by KKM to Customer(s).

            1.7       “KKM” shall mean Kompletely Kustom Marine, Incorporated and its wholly owned subsidiaries, affiliates, authorized agents, and/or employees.

            1.8       “Notice” shall mean any Communication provided to Customer(s) from KKM or a duly authorized agent thereof.

            1.9       “Parties” shall mean KKM and the Customer(s).

            1.10     “Services” means any and all efforts or actions, including labor, diagnostic inspection, repairs, or consultations provided by KKM to the Customer(s).

            1.11     “Work Order” shall mean any purchase order, estimate, quotation, invoice, and/or any other Communication, including, but not limited to, hand or type written, e-mail, text or instant message, which identifies and/or describes any request for work, parts, supplies, labor, inspection, and/or services; and/or identifies work, parts, supplies and/or services to be provided to Customer(s) Equipment, or to Customer(s) directly or indirectly.

2.         SCOPE

2.1       Any Equipment, Goods, Services, parts, consultations, and/or materials furnished to Customer(s) by KKM shall be subject to the Terms and Conditions set forth herein.  This writing supersedes and replaces any prior agreements between the parties whether written or oral.  The Customer(s) agrees to be bound currently and in all future transactions with KKM by the Terms and Conditions set forth herein.  These Terms and Conditions may change or be amended from time to time. Please review KKM’s website (www.kompletelykustom.com) for current Terms and Conditions.  KKM shall have no responsibility for slip fees, storage fees or costs, or any claimed damages for loss of use, consequential and/or punitive in nature, arising out of this Agreement.

3.         SERVICES

            3.1       KKM will perform all Services in a good and workmanlike manner.  Unless a different scope of work has been agreed upon in writing by the Parties, the Services cover the entire scope of work identified (a) on the basis of details and/or instructions the Customer(s) provides, (b) on the basis of KKM’s examination of the Equipment to be Serviced or for which Goods or labor are to be provided, and (c) as discovered during the course of the Services, labor, and/or Goods provided to Customer(s).  KKM is entitled to, and may from time to time, engage third parties to carry out Services and/or to provide Goods for Customer(s).  Unless specifically agreed in writing, the time for completion of any work is not “of the essence.” 

4.         CHARGES

4.1       Normal Course of Business.  Customer(s) shall be charged and shall pay upon request of invoice(s) all costs associated with Service(s), including, but not limited to material, time/labor, parts, and supplies at KKM’s then prevailing rates (with respect to time/labor) and/or prices (with respect to parts, materials, and supplies). Customer(s) acknowledges and agrees that KKM has the right to “mark-up” costs of any and all materials, parts, and/or supplies, as is normal and customary to account for administrative and shipping fees, and any and all other related and incurred costs.

4.2       Emergency Services.  In the event of an “Emergency Service'' (a service necessitated to preserve, save, and/or protect Customer’s Equipment and its component parts from impending damages or injury), KKM shall bill Customer(s) twice (2x) the then current KKM labor rate (subject to change in KKM’s discretion, without prior notice to Customer(s)), per person, per hour, plus an emergency call fee. The first hour of emergency service will be billed regardless of whether the responding technician(s) work a full hour.  After initial emergency services, KKM may thereafter perform preservation and remediation services to mitigate Customer(s) damages and repair the vessel, trailer, engine(s), or Equipment, unless Customer(s) specifies to cease all efforts in writing and delivering same to KKM via overnight or hand delivery.

M, then Customer(s) releases, waives and forever acquits and discharges KKM of any and all claims, liability, costs, fees, expenses, or the like for any such claim.  Customer(s) shall save and hold harmless KKM from any claim from any person or firm for any money, fees, costs, expenses or the like arising out of any warranty claim work/repairs performed by any person, firm or company other than KKM.

8.3       Terms and Conditions.  THESE TERMS AND CONDITIONS, as amended from time to time, SHALL APPLY TO ALL CURRENT AND FUTURE Services, service calls, sales, Rentals, Consultations, on-line purchases, and all other business requested by the Customer(s) regardless of whether additional estimates or service requests are submitted.  If approved by KKM the Customer(s) may request and approve services or parts via any form of Communication or via KKM’s website.

8.4       Parts Returns.  Undamaged and unused parts in their original packaging may be returned within seven (7) days of purchase when accompanied by the original receipt.  Customer(s) acknowledges that returns are subject to shipping fees and restocking fees of up to 30%.  A valid MasterCard, Visa, American Express or Discover card is required for all special order (not regularly stocked by KKM) parts.  Additional or heightened shipping charges for a special order will be charged to the Customer(s) if charged or assessed to KKM.  Special order or “custom” parts are nonrefundable.  Faulty or defective parts due to manufacturer acts or omissions may be replaced according to manufacturer’s individual warranty terms and conditions.  KKM is not responsible for replacing defective parts.  KKM, at its discretion, may communicate with the manufacturer on Customer’s behalf, as reasonably necessary to attempt to facilitate warranty part replacement.  Waste system parts or electrical parts are not returnable.  Engines, outdrives, transom assemblies, and generators are not returnable.  Claims regarding these items must be submitted to and processed by the at issue manufacturer.

8.5       Refunds.  Under no circumstance will KKM issue a refund for parts, labor, and/or any Services provided.  KKM may, in its sole discretion, issue a credit to be used towards future parts or services.  Any such credit may not be sold, assigned or transferred to any other individual or entity.

8.6       All parts, equipment, machinery or the like, that is removed or replaced, to complete services which will not be reinstalled is considered disposable and will be discarded by KKM unless expressly authorized and declared in writing by KKM that such parts, equipment, etc., shall be preserved.

9.         USE OF EQUIPMENT

            9.1       Handling, Lifting, Mooring.  KKM assumes no liability or responsibility for the condition, adequacy or strength of any lifting lug, cleat, and/or eye attached to or serving the Customer’s Equipment, to which KKM reasonably attaches its own equipment for handling, lifting, or mooring.  Any loss due to a failure or ensuing damages as herein referenced shall be Customer’s sole responsibility, and KKM, its assigns and insurers, shall have no liability for any damages or claims related to the same.

            9.2       Operation/Transportation.  Customer(s) authorizes KKM to transport and/or operate the Equipment as and where necessary and applicable for the purpose of testing, inspection, and/or delivery at Customer’s sole risk.

            9.3       Release and Indemnity.  Customer(s) acknowledges that should KKM take any action as referenced in Paragraphs 9.1 and 9.2 above, that KKM shall be held harmless and Customer(s) shall indemnify KKM for any losses suffered to Customer(s) equipment (exclusive only of the gross negligence of KKM, its authorized agents and employees, as finally determined by unappealable judicial decree).

10.       UNCLAIMED EQUIPMENT

10.1     If the Customers vehicle, vessel, Equipment, or property is not picked up after five (5) days of notice of completion, a $25 per day storage fee will be assessed until pick up and removal from KKM property.  All changes must be paid in full prior to release by KKM and pick up by Customer(s).  Any storage charges incurred under this Section for a vessel or Equipment remaining on KKM’s property after fifteen (15) days of notice of completion, will be assessed a daily charge as referenced above at a minimum of $500 per month should the Vessel remain on KKM’s property longer than ten (10) calendar days in any given month.

11.       INSURANCE

            11.1     Unless expressly otherwise agreed to by the Parties in writing, all Customer(s) Equipment shall be covered by a policy of all risk hull (OR AS APPLICABLE TO THE EQUIPMENT) insurance in an amount equal to the actual value of the Equipment and its contents (if applicable).  All Equipment shall be covered by a policy of property and indemnity (P&I or public liability) insurance, containing pollution and wreck removal coverage with a minimum limit of $500,000.00 coverage per incident.  Customer shall provide KKM with a Certificate of Insurance prior to KKM providing any Services to Customer’s Equipment.  Should KKM perform any Services prior to receipt of the Certificate of Insurance described herein, such does not waive Customer’s obligation to insure the Equipment as required herein, and/or provide KMM with a Certificate of Insurance.  Customer(s) agrees to name KKM as an “additional insured” under such policy of insurance, for the duration of any repair services.

            11.2     Customer(s) acknowledges that Customer’s insurance covering its Equipment is the only insurance that would afford coverage for any claimed loss, property damages or personal injury arising out of or related to this Agreement. Customer(s) agrees to release, acquit and forever discharge any and all claims whatsoever that it may or may ever have against KKM, its principals, authorized agents, employees, and insurers in regards to any Services performed by KKM, or any Equipment owned by Customer(s).  Customer(s) shall save and hold harmless KKM, its principals, authorized agents, employees, and insurers for any and all claims made by any party including subrogation claims by Customer’s insurer arising out of any loss including those caused by the negligence of KKM and its agents, employees arising directly or indirectly out of this Agreement.

            11.3     Nothing contained in this Agreement shall constitute a Common Law Bailment, or any other recognized Bailment in Common, Statutory or Case law authority in regards to any relationship between KKM and Customer(s).  KKM shall provide no care, custody or control of Customer’s vessel or Equipment at any time during which services are performed by KKM or during the time Customer’s Equipment is present on KKM’s property.  KKM DOES NOT insure the care or condition of the Customer’s equipment.  KKM does not employ security services to patrol its property.

12.       DEFAULT AND DAMAGES

            12.1     Any liability of KKM shall be limited to only, the insured value of any Customer(s) claim which shall not exceed the value of the repair, labor, services, etc. performed by KKM for Customer(s).  KKM’s liability shall not include any claim for loss of use, consequential, special or punitive damages regardless of the basis of the claim in contract, tort, at law or in equity.  KKM shall have no obligation to pay money for any claim without a final, non-appealable order from a court of competent jurisdiction in finding KKM, its authorized assigns, agents, and/or employees, grossly negligent or having breached its contractual duties or a declaration from a court of competent jurisdiction that KKM breached any contractual duty or owes Customer(s) any redress or damages in regards to any claim arising out of equity or statute. 

            12.2     In the event of a Customer(s) default, KKM may avail itself of any and all rights, claims, or actions be they at law, or in equity, or bound in State or Federal case, common law, or statutory law.

13.       CUSTOMER RESPONSIBILITIES

            13.1     Drain Plugs And Thru Hull Fittings.  Drain plugs and thru hull fittings:  It is Customer’s responsibility to secure all drain plugs and thru hull fittings upon delivery and pick up from KKM.  KKM will not insert, remove, open or close any drain plug, thru hull, or seacock and shall have no responsibility for any damages resulting directly or indirectly from a failure to insert, remove, open or close a drain plug or thru hull or seacock.

            13.2     ONE YEAR LIMITATION:  Any claim by Customer(s) arising out of any Service performed, or part(s) provided to Customer(s), shall be brought within One (1) year of completion of any service performed or part provided.  Failure to bring any claim within One (1) year shall forever bar Customer(s), their heirs, successors or assigns from maintaining such claim(s), or from pursuing any action against KKM, its principals, agents, successors, assigns, or insurers. ____  (Initial)

14.       PROOF OF IDENTITY AND OWNERSHIP

            14.1     KKM may require that Customer(s) provide proof of identity and ownership of equipment or express authority of Customer(s) to enter into this Agreement prior to KKM providing any Services hereunder.

15.       BINDING AUTHORITY

15.1     Customer(s) represents that he/she/it/they have the legal authority by signature below to bind the EQUIPMENT and all of its owners or beneficial interest holders to all terms and conditions of this Agreement and any amendments thereto.  In the event the person executing this Agreement is not the sole owner of the Equipment, Customer(s) has obtained the express permission and is the duly authorized agent of all persons or entities with an ownership or equitable interest in the Equipment, and further, Customer(s) warrants at the time of reviewing/executing this Agreement that Customer(s) is not under the influence of alcohol or any legal or illicit drug, Customer(s) has reached the legal age of majority, and Customer(s) is not legally incapacitated or otherwise unable to fully understand, appreciate and accept the terms contained herein.

15.2     Governing Law Jurisdiction, & Limitations.  This agreement and the Parties’ actions, rights and liabilities under this Agreement shall be governed by and construed under the laws of the State of Maryland, without reference to conflict of law principles. The parties hereby expressly consent to the jurisdiction and venue of the federal and state courts within the State of Maryland.  Venue shall be in the Anne Arundel County Circuit Court located in Annapolis, Maryland or the United States Federal District in Baltimore, as the case may be.

15.3     Entire Agreement. This Agreement, including any terms and conditions referenced herein, constitute the entire Agreement between the Parties concerning all Services, parts, Goods, Equipment and labor provided by KKM, and supersedes all previous communications, representations, understandings, and Agreements, whether verbal or written between the parties or their authorized representatives to this Agreement. No representation or statement of any kind made by either party, which is not expressly stated in this Agreement, shall be binding on the Parties hereto.

15.4     Amendments.  No waiver, amendment or modification of any provisions of this Agreement shall be effective unless in writing and with the express approval of KKM.  Exclusive of KKM’s  right to modify, alter or amend any terms and conditions of this Agreement with or without notice to Customer(s).  Please review KKM’s website for all current Terms and Conditions.

15.5     Notices.  Any notices under this Agreement shall be considered to have been given when hand-delivered, transmitted by text message or instant message, via mobile phone or device, telefax, emailed, or three (3) days after being sent by first-class or certified mail, return receipt requested, to the other Party hereto.

            15.6     Waiver.  No failure or delay by either party in exercising any claim right, power or remedy under this Agreement, shall operate as a waiver of any such claim, right, power or remedy.

15.7     Attorneys’ Fees, Costs, and Expenses.  In the event of any lawsuit, collection, or any legal proceeding by KKM involving this Agreement, the Customer(s) shall be responsible for the payment of any and all court costs, KKM attorneys’ fees incurred, collection costs, professional costs, expert fees, investigator costs, and any other miscellaneous expenses incurred by KKM.  Customer(s) is also responsible to pay for the administrative costs and lost revenue on behalf of KKM to prepare for and/or attend proceedings concerning any such lawsuit, collection, or legal proceeding, of at least one third (1/3) of the outstanding balance due KKM plus any costs, interest or fees or $385.00 whichever is greater for any collection action taken by KKM.

            15.8     Assignability & Binding Effect.  Except as expressly set forth within this Agreement, the Customer(s) may not transfer or assign, directly or indirectly, this Agreement or its rights and obligations hereunder without the express written permission of the KKM.  KKM shall have the right to assign or otherwise transfer this Agreement to any parent, subsidiary, affiliated entity or pursuant to any merger, consolidation or reorganization, provided that all such assignees and transferees agree to be bound by the terms of this Agreement prior to such assignment or transfer. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors, and assigns.  

            15.9     Certain Sections Invalid. If any provisions or portions thereof of this Agreement are held by a court of competent jurisdiction to be invalid under any applicable statute or rule of law, they are to that extent deemed omitted and the remaining provisions of this Agreement shall remain in full force and effect.

            15.10   Paragraph Headings.  The titles and headings of the various sections and sections in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify or place any construction upon or on any of the provisions of this Agreement.

*KKM reserves the right to amend its general Terms and Conditions via posting updates or addendums on its website, www.kompletelykustom.com, which shall be binding on Customer, their heirs, assigns and successors.

Signature