General Terms & Conditions for the Purchase of Goods and Services
This purchase order is an offer by Seaman Corporation (the "Seaman") for the purchase of the goods (“Goods”) and/or services, including work product and deliverables (collectively, “Services”), specified on the face of Seaman’s purchase order (collectively, "Goods and Services") from the party to whom the purchase order is addressed (the "Supplier") in accordance with and subject to these terms and conditions (these "Terms"; together with the terms and conditions on the face of Seaman’s purchase order, the "Order" or this “Order”). This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, express or implied, with respect to the subject matter of the Order. This Order expressly limits Supplier's acceptance to the terms of the Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Supplier's general terms and conditions of sale, proposal, quotation, acknowledgement, or any other document issued by Supplier in connection with this Order. These Terms apply to any repaired or replacement Goods or reperformed Services provided by Supplier hereunder. Seaman is not obligated to any minimum purchase or future purchase obligations under this Order.
This Order is not binding on Seaman until Supplier accepts the Order by (a) written acceptance or acknowledgement, (b) commencing performance, or (c) acceptance of payment. Any additional or different terms proposed by Supplier are expressly objected to and rejected by Seaman. Any such proposed terms will be null and void.
3. Delivery Date.
Supplier shall deliver the Goods in the quantities and on the date(s) and perform the Services by the date(s) specified in this Order or as otherwise agreed in writing by the parties (the "Delivery Date"). Timely delivery and performance of the Goods and Services is of the essence. Supplier’s quoted lead times are not subject to change without Seaman’s prior written consent. If Supplier fails to deliver the Goods and/or perform the Services in full on or by the Delivery Date, Seaman may terminate this Order immediately by providing written notice to Supplier and Supplier shall indemnify Seaman against any losses, claims, damages, and reasonable costs and expenses directly attributable to Supplier's failure to deliver the Goods and/or Services on or by the Delivery Date. Seaman has the right to return any Goods delivered prior to the Delivery Date at Supplier's expense and Supplier shall redeliver such Goods on the Delivery Date. Supplier shall pay all additional freight costs if Supplier needs to use an expedited shipping method to meet agreed delivery dates due to its own acts or omissions.
4. Quantity; Forecasts.
Quantities purchased by Seaman shall be as stated in this Order with no minimum purchase obligations. If Supplier delivers less than or more than 100% of the quantity of Goods ordered, Seaman may in its sole discretion reject all such Goods. Any such rejected Goods shall be returned to Supplier at Supplier's risk and expense. If Seaman does not reject the Goods and instead accepts the delivery of Goods at the reduced or increased quantity, the Price for the Goods shall be adjusted on a pro-rata basis. For “blanket” Orders with no quantity specified, Supplier shall deliver Goods and/or Services as scheduled by Seaman. Any forecasts of Goods or Services provided by Seaman to Supplier are subject to change from time to time, with or without notice to Supplier, and shall not be binding on Seaman. Unless otherwise expressly stated in this Order, Seaman makes no commitment or guaranty of any kind to Supplier regarding Seaman’s requirements for Goods and/or Services.
5. Delivery Location.
All Goods and Services shall be delivered to the address specified in this Order (the "Delivery Location") during Seaman's normal business hours or as otherwise instructed by Seaman.
6. Shipping Terms.
Unless otherwise expressly set forth on the face of this Order, delivery shall be made in accordance with Incoterms 2020 FCA to the place state in this Order or if not stated, Seaman’s place of business. Supplier shall give written notice of shipment to Seaman when the Goods are delivered to a carrier for transportation. Supplier shall provide Seaman all shipping documents, including the commercial invoice, packing list, and any other documents necessary to promptly release the Goods to Seaman after Supplier delivers the Goods to the transportation carrier. The Order number must appear on all shipping documents, shipping labels, invoices, correspondence and any other documents pertaining to the Order. If Seaman pays for transportation, Supplier shall comply with Seaman routing instructions, including choice of designated logistics carrier.
7. Title and Risk of Loss.
Title passes to Seaman upon the earlier of (a) payment by Seaman or (b) receipt of the Goods and/or Services by Seaman per the delivery terms in the Order. Supplier bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
All Goods shall be packed for shipment according to Seaman's instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Supplier shall be responsible for the cost of boxing, crating and packing. Supplier shall be liable for damage to Goods caused by improper boxing, crating or packing. Supplier must provide Seaman prior written notice if it requires Seaman to return any packaging material. Any return of such packaging material shall be made at Supplier's expense.
9. Amendment and Modification.
If Seaman requires modifications to any aspect of this Order, including drawings, designs or specifications, the parties shall negotiate an equitable adjustment, if any, in the form of a change order or amendment. Supplier shall not make any changes to this Order without Seaman’s prior written consent. No claim by Supplier for adjustment shall be allowed unless in writing and received by Seaman within 30 days from the date notice is received by Supplier. Nothing in this Section shall excuse Supplier from performance of the Order as changed, including during the pendency of any claim. Supplier may not make any change to any process, design, feature, component, raw material, formulation, assembly, fabrication, or procedure of or for any Goods or Services without Seaman’s prior written consent.
10. Inspection and Rejection of Nonconforming Goods and Services.
Seaman has the right to inspect the Goods and/or Services on or after the Delivery Date. Seaman, at its sole option, may inspect all or a sample of the Goods and/or Services, and may reject all or any portion of the Goods and/or Services if it determines the Goods and/or Services are nonconforming or defective. If Seaman rejects any portion of the Goods and/or Services, Seaman has the right, effective upon written notice to Supplier, to: (a) rescind the Order in its entirety; (b) accept the Goods and/or Services at a reasonably reduced price; or (c) reject the Goods and/or Services and require replacement of the rejected Goods or reperformance of the rejected Services. If Seaman requires replacement of the Goods and/or Services, Supplier shall, at its expense, promptly replace the nonconforming Goods and/or re-perform the nonconforming Services and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Goods and the delivery of replacement Goods. If Supplier fails to timely deliver replacement Goods or reperform the Services, Seaman may replace them with goods from a third party and/or find another service provider and charge Supplier the cost thereof and terminate this Order for cause pursuant to these Terms. Any inspection or other action by Seaman under this Section shall not reduce or otherwise affect Supplier's obligations under the Order, and Seaman shall have the right to conduct further inspections after Supplier has carried out any remedial actions.
The price of the Goods and/or Services is the price stated in the Order (the "Price"). If no price is included in the Order, the Price shall be the price set out in Supplier's published price list in force as of the date of the Order. Unless otherwise specified in the Order, the Price includes all packaging and transportation costs to the Delivery Location, insurance, taxes and tariffs (including without limitation sales, VAT/GST and other taxes and tariffs), customs duties, storage, handling, and all other expenses and charges. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Seaman.
12. Payment Terms.
Supplier shall issue an invoice to Seaman on or any time after the completion of delivery or performance and only in accordance with these Terms. Seaman shall pay all properly invoiced amounts due to Supplier within 90 days after Seaman's receipt of such invoice or such other period agreed in writing or as expressly set forth in this Order, except for any amounts disputed by Seaman in good faith. All payments hereunder will be made in U.S. dollars and made by check or wire transfer. Supplier shall continue performing its obligations under any Order that is the subject of an invoice dispute. Payment for any Goods and/or Services under this Order shall not constitute acceptance thereof.
Without prejudice to any other right or remedy it may have, Seaman reserves the right to set off at any time any amount owing to it by Supplier against any amount payable by Seaman to Supplier.
Supplier is and will remain competitive in terms of price, quality, delivery, service, and technology with respect to the Goods and/or Services. If Seaman provides Supplier with written notice with specific information regarding the nature of any non-competitiveness of Supplier, then Supplier will promptly remedy such non-competitiveness no later than 15 days after receipt of such notice. If Supplier fails or elects not to remedy its non-competitiveness, as determined by Seaman in its sole discretion, Seaman may terminate any Order, in whole or in part, for cause pursuant to these Terms.
Supplier warrants to Seaman that all Goods and Services will: (a) be merchantable and free from defects in workmanship, material and design; (b) be fit for the purposes intended by Seaman; (c) conform to applicable specifications, drawings, designs, standards, samples, descriptions and other requirements specified or furnished by Seaman; (d) be free and clear of all liens, security interests, claims and encumbrances; (e) be manufactured entirely with new materials and free from latent defects, (f) not infringe or misappropriate any third party's patent or other intellectual property rights, and (g) be free from viruses, disabling code, and open source software unless reviewed and approved by Seaman. Supplier further warrants to Seaman that the Services will be performed in a timely, professional, and workmanlike manner consistent with best industry standards and in compliance with all appliable laws, rules, and regulations. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods and/or Services by Seaman. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Seaman's discovery of the noncompliance of the Goods and/or Services with the foregoing warranties.
In the event of warranty breach, Seaman will be entitled to all rights and remedies available at contract, law, or equity, including without limitation at no cost to Seaman and in Seaman’s sole discretion one or more of the following remedies: (a) repair or replacement of defective Goods, (b) reperformance of Services; (c) credit; (d) recovery of the costs and expenses of removing the Goods from any system, assembly, or component and returning the Goods; and/or (e) recovery of any other costs, expenses, or losses caused by or resulting from the defective Goods or Services. Supplier will also reimburse Seaman for any special, incidental and consequential damages and lost revenue and profits caused by such defective or nonconforming Goods and/or Services including without limitation, costs, expenses, and losses incurred by Seaman: (i) in inspecting, sorting, repairing, or replacing such goods or services; (ii) resulting from any production interruptions; (iii) in taking corrective actions, including without limitation recall campaigns; and (iv) in connection with claims for personal injury or property damage.
Supplier shall defend, indemnify and hold harmless Seaman and Seaman's subsidiaries, affiliates, successors or assigns, and their respective directors, officers, shareholders and employees and Seaman's customers (collectively, "Indemnitees") from and against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") arising out of or occurring in connection with (a) the design, manufacture, sale or use of the Goods and/or Services; (b) Goods delivered or Services performed pursuant to an Order; (c) Supplier's negligence or willful misconduct; or (d) breach of these Terms and/or any Order. Supplier shall not enter into any settlement without Seaman's or Indemnitee's prior written consent. Supplier shall also defend, indemnify and hold harmless Seaman and any Indemnitee against any and all Losses arising out of or in connection with any claim that Seaman's or Indemnitee's use or possession of the Goods and/or use of the Services or any related work product or deliverables infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Supplier enter into any settlement without Seaman's or Indemnitee's prior written consent.
17. Seaman Property.
Seaman owns all drawings, patterns, raw materials, fabric, equipment, and other property of any kind provided or made available to Supplier by Seaman for use in Supplier’s performance under this Order (“Seaman Property”). At all times while in possession of the Seaman Property, Supplier shall (a) store and maintain the Seaman Property in good usable condition; (b) use reasonable care to protect and prevent damage to the Seaman Property; (c) insure the Seaman Property against all risks in an amount equivalent to the current replacement value thereof and reasonably acceptable to Seaman and if requested name Seaman as an additional insured; (d) keep Seaman’s right, title and interest in the Seaman Property free at all times from all claims, liens, security interests and encumbrances of any kind; (e) promptly return any item included within the Seaman Property upon Seaman’s request for that particular item; (f) segregate the Seaman Property apart from its general inventory and clearly and permanently label such property “Property of Seaman Corporation”; and (g) perform all commercially reasonable acts necessary and/or appropriate to protect and defend Seaman’s ownership interest in the Seaman Property, including without limitation, notifying Supplier’s secured creditors in writing that Seaman is the sole owner of such property. Supplier agrees that Seaman may elect to file a financing statement with the appropriate governmental authority in the appropriate jurisdiction(s) which shall serve as public notice that the Seaman Property is owned by Seaman. Supplier further agrees that if a financing statement is filed, it is not intended to be a security interest by Seaman, but is only intended to protect the rights of Seaman as the owner of such property. SEAMAN MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SEAMAN PROPERTY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Supplier represents that it has and will maintain appropriate insurance coverage, in accordance with best industry practices, with a reputable insurance company against all relevant liabilities, indemnities, losses, and other obligations of Supplier in connection with this Order and Supplier’s operations. Seaman may specify additional insurance coverage requirements applicable to this Order. Such coverage shall not limit Supplier’s liability under this Order. Upon Seaman's request, Supplier shall provide Seaman with a certificate of insurance from Supplier's insurer evidencing the insurance coverage. Upon Seaman’s request, the certificate of insurance shall name Seaman as an additional insured. Except where prohibited by law, Supplier shall require its insurer(s) to waive all rights of subrogation against Seaman's insurers and Seaman or the Indemnitees.
19. Compliance with Law.
Supplier is in compliance with and shall comply with all applicable laws, statutes, rules, regulations, orders, and ordinances, including without limitation, those that relate to wages, hours, employment conditions, equal employment opportunity, health and safety, discrimination, vehicle safety, data protection, anti-bribery, and environmental matters. At Seaman’s request, Supplier will certify in writing its compliance with laws, statutes, rules, regulations, orders, and ordinances. Supplier has and shall maintain in effect all the licenses, permits, and authorizations that it needs to perform its obligations under this Order. Supplier shall comply with all export and import laws of all countries involved in the sale of Goods and/or Services under this Order.
20. Anti-Corruption Compliance.
Supplier shall comply with applicable national and international anti-bribery rules, including without limitation the U.S. Foreign Corrupt Practices Act (FCPA), U.S. Anti-Kickback Act, U.K. Bribery Act, and other similar anti-bribery rules and laws. Supplier shall not directly or indirectly offer, receive, or solicit any form of kickback, bribe, or other corrupt payment or thing of value to or from any person or organization, including government agencies or officials, business entities or any other person or entity. Supplier and its affiliates shall at all times keep complete and accurate books and records, and all records and information that Supplier provides to Seaman relating to this Order shall be complete and accurate.
21. Termination for Convenience.
Seaman reserves the right in its sole discretion to terminate this Order, or any part hereof, for convenience upon written notice to Supplier. Upon receipt of termination notice from Seaman, Supplier shall immediately cease all work and cause its suppliers and subcontractors to cease work. Supplier shall have 30 days following any such termination within which to submit documentation to claim reasonable termination costs, if any. Such costs shall only include Supplier’s direct costs that have been incurred as a result of termination. Any claim for termination costs shall be deemed waived unless asserted by Supplier within 30 days after Supplier’s receipt of Seaman’s termination notice.
22. Termination for Cause.
Upon written notice to Supplier, Seaman may terminate all or part of this Order if (a) Supplier defaults in performing under this Order, including late delivery or the failure to make reasonable progress towards completion of this Order, and such default is not cured within 7 days, or (b) in the event of Supplier’s insolvency, bankruptcy, cessation of business operation, the appointment of a receiver for Supplier’s property or business, or any reorganization or assignment by Supplier for the benefit of its creditors. Without limiting Seaman’s rights, Supplier shall be liable for, and pay to Seaman, any costs in excess of the price of the Goods and/or Services. In the event of a termination for default, Supplier shall preserve and protect property in its possession where Seaman has an interest, including without limitation, the Seaman Property. Seaman shall be entitled to a refund of all monies paid to Supplier for the terminated Order.
No waiver by any party of any of the provisions of this Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
24. Confidential Information; Personal Data.
All non-public, confidential or proprietary information of Seaman, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer names and lists, pricing, discounts or rebates, disclosed by Seaman to Supplier, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with this Order is confidential to Seaman, solely for use in performing this Order and shall not be disclosed or copied by Supplier unless authorized by Seaman in writing. Supplier will limit access to Seaman’s confidential information to only those Supplier employees having a need to know such information for the sole purpose of performing under this Order, and Supplier will require all such employees of Supplier having access to such information to be made aware of and be bound by the obligations under this Section. Upon Seaman's request, Supplier shall promptly return all documents and other materials received from Seaman. Seaman shall be entitled to injunctive relief for any violation of this Section, without the posting of a bond. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Supplier at the time of disclosure without any violation of confidentiality obligations; or (c) rightfully obtained by the Supplier on a non-confidential basis from a third party.
Supplier may have access to or receive information relating to identified or identifiable individuals (“Personal Data”), including employees of Seaman, customers, suppliers, contractors, or consultants. Supplier shall keep Personal Data strictly confidential and use it (a) only within the limits authorized by Seaman and for the sole limited purpose of Supplier’s performance under the Order, and (b) in accordance with all applicable laws, rules, and regulations, including where applicable, Personal Data processing clauses.
25. Data Security.
Supplier shall develop, implement, operate, maintain, update, and monitor a data and cybersecurity program incorporating administrative, organizational, physical and technical safeguards, security awareness, and security measures designed to prevent and protect against any unauthorized access, use, destruction, processing, alteration, disclosure, or loss of Seaman confidential information and Personal Data. Upon Seaman’s request, Supplier shall submit proof of Supplier’s data and cybersecurity program to Seaman. Supplier will notify Seaman immediately of any actual or reasonably suspected breach to Supplier’s security that could potentially result in unauthorized access to Seaman’s networks, operational technology systems, information technology systems, internet-enabled applications or devices or the data contained within any such systems or the loss or unauthorized alteration, disclosure, control, access or use of confidential information and/or Personal Data. Supplier will provide a full description of such breach and its mitigation efforts. Supplier will promptly investigate, remediate, and mitigate the effects of such breach. Should Seaman determine in its sole discretion that other remedial measures are warranted, Supplier will, at Seaman’s request and at Supplier’s cost, undertake such remedial actions. Seaman or its representatives shall have the right to audit Supplier’s compliance with the requirements of this Section.
26. Intellectual Property.
All work product, including, but not limited to, any idea, invention, concept, design, prototype, product configuration, process, technique, procedure, system, plan, model, program, software or code, data, specification, drawings, diagram, flow chart, documentation, or the like that are created in the course of performing under this Order, and any associated intellectual property rights therein, whether created jointly or solely by Supplier or its subcontractors, shall be the sole and exclusive property of Seaman. Supplier agrees that all works of authorship created by Supplier or its subcontractors in connection with performing under this Order and the results of the Services are “works made for hire” on behalf of Seaman as that term is used in connection with the U.S. Copyright Act. The term “intellectual property” as used herein means all patents, patent applications, patentable subject matter, copyrights, copyrightable subject matter, work of authorship, derivative works, trademark, trade name, trade dress, trade secrets, know-how, and any other subject matter, material, or information that is considered by Seaman to be proprietary or confidential and/or that otherwise qualifies for protection under any law providing or creating intellectual property rights, including the Uniform Trade Secrets Act. Supplier hereby assigns to Seaman ownership of all right, title, and interest in the work product and any associated intellectual property, and further agrees to cooperate with Seaman and to assist in the preparation and execution of all documents relating to any effort by or on behalf of Seaman to evidence such ownership and to apply for, obtain, maintain, transfer, or enforce any intellectual property right, at the request and expense of Seaman.
The parties acknowledge that Seaman owns or has license to use all trade secret, copyright, patent, trademark, know-how, mask work, and other intellectual property right, whether registered or unregistered of Seaman or Seaman’s customers that Seaman makes available to Supplier, or to which Supplier has access to, under this Order, and the parties agree that Supplier shall be permitted to use this intellectual property strictly and solely in conjunction with Supplier’s manufacture, supply and/or repair of any Goods for Seaman and/or the provision of Services exclusively for Seaman. Seaman retains all right, title and interest in and to its intellectual property related to this Order.
Supplier retains its intellectual property that existed and was independently created by Supplier prior to these Terms. Supplier grants Seaman a perpetual, royalty-free, worldwide, nonexclusive, irrevocable, license to all Supplier’s intellectual property subsisting or embodied in or used in connection with the Goods and Services and work product and deliverables, with a right to grant sublicense to others, to make, have made, use, distribute, have distributed, combine with goods, have combined with goods, offer to sell, sell, repair, reconstruct or rebuild, Goods, and copy, distribute and create derivative works of copyrightable work product and deliverables.
27. Force Majeure.
Neither Seaman nor Supplier will be in default for any delay or failure to perform under this Order due to natural, political, or civil causes beyond its reasonable control and without its fault or negligence (“Force Majeure”). Notwithstanding the foregoing, the following shall not constitute a Force Majeure event for Supplier: (a) increases in Supplier’s costs, (b) material shortages or other supply chain issues, (c) Supplier’s ability to sell Goods and/or Services at a more advantageous price, (d) labor disputes or strikes at Supplier’s facilities or its subcontractor’s facilities, or, (e) pandemics or epidemics. The party affected by a Force Majeure event shall promptly provide written notice to the other party, explaining in detail the full particulars and expected duration of the event, and shall use its best efforts to remedy the event. If Supplier’s delivery or performance under this Order is delayed by a Force Majeure event, Seaman may terminate the Order for cause pursuant to these Terms.
Supplier shall not assign (including without limitation, by merger, asset or stock sale, change of control, operation of law, or otherwise), transfer, delegate or subcontract any of its rights or obligations under this Order, in whole or in part, without the prior written consent of Seaman. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Supplier of any of its obligations hereunder. Supplier shall cause its subcontractors to comply with these Terms and shall be liable for the acts or omissions of its subcontractors and/or for a breach of these Terms by its subcontractors, including without limitation, the confidentiality, insurance, and indemnification obligations hereunder. Seaman may at any time assign, transfer or subcontract any or all of its rights or obligations under this Order without Supplier's prior written consent.
29. Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order.
Seaman or its representative may enter, inspect and/or audit on reasonable notice Supplier’s plant, books and records to verify Supplier’s compliance with this Order.
31. No Third-Party Beneficiaries.
This Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
32. Governing Law.
All matters arising out of or relating to this Order shall be governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio. The provisions of the United Nations Convention on Contracts for the International Sale of Goods are hereby excluded.
33. Submission to Jurisdiction.
Any legal suit, action or proceeding arising out of or relating to this Order shall be instituted in the federal courts of the United States of America or the courts of the State of Ohio in each case located in the State of Ohio, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
Seaman’s rights and remedies shall be cumulative and in addition to all other remedies allowed by law or in equity.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of this Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Order, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
37. Amendments; Order of Precedence.
No amendments, subsequent terms, conditions, understandings or agreements purporting to modify these Terms will be binding unless in writing and signed by the authorized representatives of both parties. In the event of any inconsistency or conflict between these Terms, a purchase order, or other documents incorporated by reference that cannot be reconciled, the order of priority will be as follows: these Terms, followed by the purchase order and then followed by documents incorporated by reference.
38. No Advertising.
Supplier will not advertise or otherwise disclose its relationship with Seaman or Seaman’s customers without Seaman’s prior written consent, except as required by applicable law or as required to perform under this Order.
Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration or completion of this Order including, but not limited to, the following provisions: Applicability, Acceptance, Setoff, Warranties, Indemnification, Seaman Property, Insurance, Compliance with Law, Anti-Corruption Compliance, Confidential Information; Personal Data, Data Security, Intellectual Property, Audit, Governing Law, Submission to Jurisdiction, and Survival.
40. Binding Effect.
This Order will be binding on Seaman and Supplier and their respective successors and any duly authorized assigns. Each party represents to the other party that it is under no contractual or other legal obligations, constraints, or disabilities that would prevent it from performing under this Order or limit its performance under this Order.
41. Construction and Interpretation.
The following rules of construction will govern the interpretation of these Terms: (a) the word “including” and words of similar import will be “including without limitation”, (b) words in the singular will be held to include the plural and vice versa and words of one gender will be held to include the other gender as the context requires, (c) the headings contained in these Terms are for reference purposes only and will not affect in any way the meaning or interpretation of these Terms, and (d) provisions will apply, when appropriate, to successive events and transactions, and Seaman and Supplier agree that the usual rules of contract construction construing ambiguities against the drafter will not apply as the parties are of equal bargaining power. Thus, all terms will be given their plain meaning.