Seaman Corporation Terms & Conditions for the Sale of Goods and Services
All purchase orders for, contracts for the sale of, and all acceptances by Buyer (as defined below) of, any services (“Services”), materials, products and/or any other items (“Goods”) provided and/or sold by Seaman Corporation (collectively, herein “Goods and Services”) SHALL BE EXPRESSLY CONDITIONAL ON BUYER’S ASSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN (THESE “TERMS AND CONDITIONS”), AND NO TERMS IN ADDITION TO OR DIFFERENT FROM THOSE SET FORTH HEREIN SHALL BE BINDING ON SEAMAN CORPORATION UNLESS SPECIFICALLY AND EXPRESSLY AGREED TO IN WRITING BY SEAMAN CORPORATION. ANY ACCEPTANCE OF SEAMAN CORPORATION’S OFFER IS EXPRESSLY LIMITED TO ACCEPTANCE OF THESE TERMS AND CONDITIONS AND SEAMAN CORPORATION EXPRESSLY REJECTS AND OBJECTS TO ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY BUYER. SEAMAN CORPORATION MAY WITHOUT LIABILITY CHOOSE NOT TO ACCEPT ANY ORDER AT ITS SOLE DISCRETION. ANY PERSON OR ENTITY WHO PURCHASES GOODS AND SERVICES FROMSEAMAN CORPORATION WILL BE CONSIDERED A “BUYER” AS THAT TERM IS USED HEREIN AND WILL BE DEEMED TO HAVE ACCEPTED AND BE BOUND BY THESE TERMS AND CONDITIONS IN THEIR ENTIRETY. THESE TERMS AND CONDITIONS PREVAIL OVER ANY OF BUYER’S TERMS AND CONDITIONS OF PURCHASE REGARDLESS OF WHETHER OR WHEN BUYER HAS SUBMITTED ITS PURCHASE ORDER OR SUCH TERMS. FULFILLMENT OF BUYER’S ORDER DOES NOT CONSTITUTE ACCEPTANCE OF ANY OF BUYER’S TERMS AND CONDITIONS AND DOES NOT SERVE TO MODIFY OR AMEND THESE TERMS AND CONDITIONS. SEAMAN CORPORATION’S PERFORMANCE SHALL CONSTITUTE BUYER’S ASSENT TO THESE TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS CONSTITUTE THE ENTIRE AGREEMENT BETWEEN SEAMAN CORPORATION AND BUYER WITH RESPECT TO THE MATTERS CONTAINED HEREIN, AND SUPERSEDE ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED. IN FURTHERANCE OF THE FOREGOING, SEAMAN CORPORATION’S CLICKING OF ANY BUTTONS OR ANY SIMILAR ACTION, SUCH AS CLICKING “I AGREE” OR “CONFIRM,” WHETHER PRIOR TO, ON, OR AFTER THE DATE OF ANY ORDER, TO REGISTER SEAMAN CORPORATION AS AN AUTHORIZED VENDOR OF BUYER ON BUYER’S ONLINE PORTAL OR WEBSITE AND/OR TO UTILIZE BUYER’S ONLINE PORTAL OR WEBSITE FOR THE PLACEMENT OF ORDERS BY BUYER, IS NOT AND SHALL NOT BE DEEMED TO BE CONSTRUED AS AN AGREEMENT TO BUYER’S TERMS AND CONDITIONS, REGARDLESS OF ANY LANGUAGE TO THE CONTRARY SET FORTH ON BUYER’S ONLINE PORTALS OR WEBSITES. NO EMPLOYEE, AGENT OR REPRESENTATIVE OF SEAMAN CORPORATION HAS THE AUTHORITY TO BIND SEAMAN CORPORATION BY THE ACT OF CLICKING ANY BUTTON OR SIMILAR ACTION ON ANY OF BUYER’S ONLINE PORTALS OR WEBSITES.
2. Title and Risk of Loss.
Title and risk of loss or damage to Goods shall pass to Buyer upon tender of delivery F.O.B. Seaman Corporation’s manufacturing facility unless otherwise agreed upon by the parties in writing, except that Buyer hereby grants to Seaman Corporation a purchase money security interest in the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing, until full payment therefore has been received. Buyer agrees upon request to do all things necessary to allow Seaman Corporation to perfect and maintain said security interest and shall protect SeamanCorporation’s interest by adequately insuring the Goods in an amount of no less than the aggregate purchase price thereof against loss or damage from any cause. Buyer’s rejection of any Goods shall not shift the risk of loss or damage until the Goods are returned to Seaman Corporation, freight prepaid, pursuant to Seaman Corporation’s written authorization. Buyer shall obtain and maintain liability insurance coverage in an amount reasonably acceptable to Seaman Corporation covering the Buyer location(s) where Seaman Corporation will be performing the Services. Upon request, Buyer shall provide Seaman Corporation with a certificate of insurance evidencing the above coverage.
3. Price, Fees, Taxes, Representation of Solvency, Approval of Credit Department, Interest Charges, No Accord and Satisfaction.
Prices for Goods quoted are F.O.B., Seaman Corporation’s manufacturing facility, and the amount of any local, state or federal taxes on the Goods and Services shall be added to the price and paid by Buyer. In consideration of the provision of the Services, Buyer shall pay the fees set forth in Seaman Corporation’s order confirmation. Buyer shall reimburse Seaman Corporation for all reasonable travel and other expenses incurred by Seaman Corporation or its subcontractors in connection with the performance of the Services. Buyer represents that Buyer is solvent and can and will pay for the Goods and Services sold to Buyer in accordance with the terms hereof. All shipments of Goods to or provision of Services for Buyer shall be subject to the approval of Seaman Corporation’s credit department. Seaman Corporation reserves the right before shipping any Goods to or providing any Services for Buyer to require payment therefore in advance or to require security for payment and if Buyer fails to comply with any such requirement imposed by Seaman Corporation, Seaman Corporation may terminate any contract with Buyer affected thereby. Unless otherwise expressly set forth in Seaman Corporation’s quotation, Buyer shall pay all invoiced amounts due to Seaman Corporation within thirty (30) days from the date of Seaman Corporation’s invoice. Buyer shall make all payments hereunder by wire transfer or check and in U.S. dollars. An interest charge the lesser of one and one-half percent (1-1/2%) per month or the maximum allowed by applicable law will be assessed by Seaman Corporation and paid by Buyer on all past due accounts. Buyer shall also be liable to Seaman Corporation for all costs incurred by Seaman Corporation in its collection of any amounts owing by Buyer which are not paid when due, including collection agency fees and expenses and reasonable attorneys’ fees and expenses, regardless whether a lawsuit is commenced against Buyer. Checks or payments, whether full or partial, received from or for the account of Buyer, regardless of writings, legends or notations upon such checks or payments, or regardless of other writings, statements or documents, shall be applied by Seaman Corporation against the amount owing by Buyer with full reservation of all Seaman Corporation’s rights and without an accord and satisfaction of Buyer’s liability.
4. Price Quotations.
All prices and fees quoted during the course of any bid-process or otherwise are based on the then current prices for raw materials, components, and labor. The market for these raw materials, components and labor may be volatile and sudden price increases may occur. Buyer acknowledges and agrees that in the event of a price increase of any raw material or component or labor which occurs through no fault of Seaman Corporation after the date of a quotation, or in the event of significant inflation, Seaman Corporation reserves the right in its sole discretion to reissue the quotation with updated, increased pricing or fees. Buyer further acknowledges and agrees that Seaman Corporation reserves this right, even if the earlier quotation had been previously accepted by Buyer. If Seaman Corporation reissues any quotation pursuant to this Section 4, if requested by Buyer, SeamanCorporation will provide Buyer with reasonable documentation evidencing the increased raw material or component or labor pricing and/or the significant inflation.
5. Inspection and Acceptance.
Buyer shall inspect all Goods upon arrival and all Services upon performance and shall notify Seaman Corporation in writing of any shortages, nonconformance with the purchase order or any other failures to conform to the applicable sales contract which are reasonably discoverable upon arrival. Any such shortages and other discoverable nonconformance not reported within thirty (30) days after receipt of the Goods or performance of the Services shall be waived by Buyer.
6. Delivery or Performance Schedules.
NO DELIVERY OR PERFORMANCE DATES ARE GUARANTEED. Any delivery or performance schedules which may be specified by Buyer or agreed to by Seaman Corporation shall be considered to be estimates only, and Seaman Corporation shall not incur any liability to Buyer, either directly or indirectly, and Buyer shall not cancel any purchase order based upon, Seaman Corporation’s failure to deliver Goods and/or provide the Services by the dates set forth in any such schedule.
Unless otherwise agreed in writing by the parties, Seaman Corporation shall package and ship the Goods using Seaman Corporation’s standard methods for packaging and shipping such Goods. All Goods shipped in one-way containers (barrels, canisters, sacks, bags, cartons, etc.) shall become the property of Buyer and shall not be returned to Seaman Corporation but properly disposed of by Buyer. All Goods shipped in returnable containersare the property of Seaman Corporation and Buyer shall return any such containers to Seaman Corporation. Buyer shall be liable for the failure to return such containers. Goods in containers are invoiced at their net weight.
8. Buyer-Supplied Property; Buyer Obligations.
- Buyer shall timely supply at its expense any patterns, tooling, designs, plans, and drawings (collectively, the “Buyer-Supplied Property”) to Seaman Corporation which are necessary and/or appropriate to produce the Goods and/or provide the Services hereunder. Seaman Corporation shall not haveany indemnification obligation to Buyer with respect to any loss or damage incurred as a result of the use of the Buyer-Supplied Property by SeamanCorporation. Further, Seaman Corporation shall not be required to maintain insurance covering the Buyer-Supplied Property and Buyer assumes all risk of loss with respect to all Buyer-Supplied Property supplied to Seaman Corporation hereunder.
- Buyer shall (i) cooperate with Seaman Corporation in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by Seaman Corporation, for the purposes of performing the Services; (ii) respond promptly to any request by Seaman Corporation or its subcontractors to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seaman Corporation to perform Services; (iii) provide such Buyer materials or information as Seaman Corporation may reasonably request to carry out the Services in a timely manner and ensure that such Buyer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
9. Force Majeure and Delay.
- Seaman Corporation shall not (x) be liable to Buyer for any damages resulting from, (y) be responsible to Buyer for, or (z) be deemed to have defaulted under or breached an order as a result of any failure or delay in delivery of Goods and/or performance of the Services or from any failure or delay in the performance of any other obligation of Seaman Corporation which failure or delay is due to (i) any act of God; (ii) Seaman Corporation’s being required to fulfill any government order for Goods or Services, or any order for Goods or Services placed under any allocation program (mandatory or voluntary) established pursuant to law; (iii) local labor shortage; (iv) fire, explosion, flood, earthquake, or other casualty; (v) governmental regulation, order, law, action or requirement; (vi) a shortage of raw materials, supplies, fuel, power, or transportation; (vii) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, equipment failures or a breakdown of internet service provider or communication facilities; (viii) any strike, labor dispute, difference with workers or other industrial disturbances, regardless of whether or not Seaman Corporation might be able to settle any such strike, dispute, difference or disturbance; (ix) natural disasters; (x) epidemic, pandemic, or quarantine; (xi) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riotor other civil unrest; (xii) national or regional emergency; (xiii) severe weather conditions; (xiv) embargoes or blockades in effect on or after the date of an order; or (xv) any other cause beyond Seaman Corporation’s control ((i)-(xv), “Force Majeure Event(s)”). In the event that any Force Majeure Event continues for a period of ten (10) days, Seaman Corporation may thereafter terminate any impacted order effective immediately upon written notice.
- If Seaman Corporation’s performance of its obligations under an order is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seaman Corporation shall not be deemed in breach of its obligations under an order or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
Any pricing, other sensitive commercial information and any other non-public information provided by Seaman Corporation to Buyer is proprietary to Seaman Corporation and shall be held in confidence by Buyer, shall only be used by Buyer in connection with sales of Goods or Services hereunder,and shall not be used for any other purposes or disclosed to third parties without Seaman Corporation’s prior written consent. Buyer shall be liable for any loss to Seaman Corporation or commercial gain by others from unauthorized use of confidential information occasioned by Buyer’s failure to comply with this provision. Upon Seaman Corporation’s request, Buyer shall promptly return all documents and other materials received from Seaman Corporation. Seaman Corporation shall be entitled to injunctive relief for any violation of this Section, without the posting of a bond.
11. Changes in Design or Services.
Seaman Corporation reserves the right to discontinue the manufacture or sale of any model, style or type of Goods it presently manufactures or sells, and/or Services it provides, and reserves the right to change the design or composition of Goods it presently manufactures or sells without notice toBuyer. Seaman Corporation shall incur no liability to Buyer as a result of any such discontinuance or change. Seaman Corporation shall have noobligation to furnish or install any replacements for Goods sold to Buyer prior to any such discontinuance or change. Notwithstanding anything to the contrary contained in these Terms and Conditions, Seaman Corporation may, from time to time change the Services without the consent of Buyer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in an order.
12. Goods Made to Buyer’s Specifications or Off-Quality Goods.
Seaman Corporation makes NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, except as to title, with respect to Goods manufactured, compounded and/or designed to Buyer’s own specifications, or with respect to off-qualityGoods or “seconds” which Buyer has specifically requested or agreed to accept. Buyer shall release, indemnify, defend and hold Seaman Corporation, its affiliates, and their respective officers, directors, employees, and agents, harmless from and against any claim asserted against Seaman Corporation, its affiliates, or their respective officers, directors, employees, or agents, by reason of Seaman Corporation’s manufacture or sale of such Goods. Buyer shall reimburse Seaman Corporation, its affiliates, and their respective officers, directors, employees, and agents, for any losses, damages, and expenses, including attorney fees, resulting from or arising in any manner out any such claim.
13. Manufacturer Warranty.
Goods or components of Goods sold by Seaman Corporation may be manufactured by a third party manufacturer (“Third Party Products”) and warranted to Buyer by the third party manufacturer. Seaman Corporation will not be responsible or obligated to enforce the warranties extended by such manufacturer to Buyer, but will use commercially reasonable efforts to assist Buyer in obtaining or verifying any such warranty information.Seaman Corporation may distribute literature or sales materials of the manufacturer, but assumes no responsibility for the content of such literature or materials. Third Party Products are not covered by the warranties in these Terms and Conditions. For the avoidance of doubt, SEAMAN CORPORATION MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCTS, 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.
- Except as described in Sections 12 and 13 above, Seaman Corporation warrants to Buyer only that for a period of thirty (30) days following shipment of such Goods to Buyer: (a) Goods described in any product-specific written warranty published and delivered to Buyer by Seaman Corporation are in accordance with and subject to such product-specific written warranty; or (b) Goods not described in any product-specific warranty published and delivered to Buyer by Seaman Corporation are in accordance with Seaman Corporation’s published specifications or Buyer’s specifications included in Buyer’s order (as applicable) at the time Seaman Corporation accepted such order therefor and that it will repair or replace, at Seaman Corporation’s sole discretion, such Goods that fail to conform to those specifications, provided notice of claim under this warranty is given within a period of not less than thirty (30) days following shipment of such Goods to Buyer. Warranty repair or replacement by Seaman Corporation shall not extend or renew the applicable warranty period. Seaman Corporation shall in no event be responsible for costs incurred by Buyer in returning Goodsto Seaman Corporation for repair or replacement. No Goods shall be returned to Seaman Corporation without the prior written consent of Seaman Corporation. The foregoing limited warranty set forth in this Section 14(a) shall be void and of no effect whatsoever in the event Buyer makes any further use of Goods after making a warranty claim with respect to such Goods or in the event the Goods shall have been damaged or abused as a result of (i) damage by machinery, equipment or any persons; (ii) exposure to excessive pressures or sources; (iii) abnormal weather conditions, floods, natural disasters, or acts of God; (iv) falling objects, explosions, or fire; (v) acts of war, terrorism, riots or civil commotion; (vi) external forces; (vii) faulty or inadequate installation; (viii) vandalism, animals or insects; (ix) alterations or repairs without the prior written consent of Seaman Corporation; (x) installation of structures, fixtures, or utilities on or through the Goods or traffic or storage of materials on the Goods; (xi) negligence or failure to properly maintain the Goods; (xii) radiation, harmful fumes or foreign substances in the atmosphere; (xiii) chemicalcontaminants not approved by Seaman Corporation; (xiv) Buyer failing to follow Seaman Corporation’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (xv) the failure of materials or components not furnished by Seaman Corporation. Final disposition of any warranty claim will be solely determined by Seaman Corporation.
- Seaman Corporation warrants to Buyer only that that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. Seaman Corporation shall not be liable for a breach of the warranty set forth in this Section 14(b) unless Buyer gives written notice of the defective Services, reasonably described, to Seaman Corporation within thirty (30) days after completion of the Services. Subject to foregoing notice requirement, Seaman Corporation shall, in its sole discretion, either (i) repair or re-perform such Services (or the defective part); or (ii) credit or refund the price of such Services at the pro rata contract rate.
15. Exclusion of Other Warranties.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE IN SECTION 14, SEAMAN CORPORATION MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS AND/OR SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR 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, USE OF TRADE OR OTHERWISE. NO WARRANTIES OR REPRESENTATIONS AT ANY TIME MADE BY ANY REPRESENTATIVE OF SEAMAN CORPORATIONSHALL BE EFFECTIVE TO VARY OR EXPAND THE ABOVE EXPRESS WARRANTY OR ANY OTHER TERMS HEREOF.
16. Technical Advice; Product Selection and Suitability; Indemnification.
Seaman Corporation shall not be liable to Buyer for any damages incurred as a result of any technical advice allegedly given by Seaman Corporationto Buyer in connection with the design, installation or use of the Goods. Such technical advice is accepted at Buyer’s sole risk. Seaman Corporation shall not be responsible for how the Goods are used or installed and the Good’s conformance with applicable Federal, state, local or foreign laws, rules, regulations, and ordinances. IIN NO EVENT SHALL SEAMAN CORPORATION BE RESPONSIBLE FOR ANY LOSS OR DAMAGE ARISING OUT OF BUYER’S DESIGN, IMPROPER SELECTION, MISAPPLICATION OR MISUSE OF GOODS. Moreover, Buyer and its affiliates shall jointly and severally release, indemnify, defend, and hold harmless Seaman Corporation, its affiliates, and theirrespective officers, directors, employees, and agents from and against all claims for loss or damage to property or injury to or death of any person orpersons resulting from or arising in any manner out of: (a) the design, selection, installation, fabrication, sale, and/or use of the Goods by Buyer or its customers or agents, (b) the negligence or willful misconduct of Buyer or its employees or agents, or (c) a breach of these Terms and Conditions or an order hereunder by Buyer or its employees or agents.
17. Liability Limitation.
Seaman Corporation’s liability hereunder shall be limited to the obligation to repair or replace the Goods and repair or re-perform the Services pursuant to Section 14 above. SEAMAN CORPORATION’S TOTAL CUMULATIVE LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY, ANY OTHER LEGAL OR EQUITABLE THEORY OR OTHERWISE, IN ANY WAYARISING FROM OR PERTAINING TO ANY GOODS AND/OR SERVICES SOLD OR PERFORMED OR REQUIRED TO BE SOLD OR PERFORMED UNDER ANY CONTRACT OR ORDER WITH BUYER SHALL NOT IN ANY CASE EXCEED THE PURCHASE PRICE PAID BY BUYER FOR SUCH GOODS AND/OR SERVICES. IN NO EVENT SHALL SEAMAN CORPORATION HAVE ANY LIABILITY TO BUYER OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OF USE, COMMERCIAL LOSS, LOSS OF DATA OR DIMINUTION IN VALUE, LABOR COSTS, CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, OR FOR ANY LOSS OF PROFITS OR REVENUE, DOWN TIME, OR ANY OTHER CLAIM, IN EACH CASE, WHETHER IT BE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY, ANY OTHER LEGAL OR EQUITABLE THEORY OR OTHERWISE, EVEN IF SEAMAN CORPORATION HAS BEEN ADVISED OF THEPOSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IT IS EXPRESSLY AGREED THAT BUYER’S REMEDIES EXPRESSED IN THIS PARAGRAPH ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES AND SEAMAN CORPORATION’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 14.
In the event Buyer (i) defaults in payment of any sum due Seaman Corporation; (ii) is adjudicated bankrupt; or (iii) makes an assignment for the benefit of creditors, Seaman Corporation may, in addition to any and all other remedies provided herein or by law, (a) suspend in transit any shipment of the Goods and/or suspend the performance of Services; (b) decline to make further shipments and/or decline any further performance of Services; (c)postpone any further performance under the relevant sales and/or services contracts with Buyer until such default is corrected; (d) declare all amounts owed by Buyer under the other sales and/or services contracts to be due and payable immediately; and/or (e) exercise all rights of a secured party. If Seaman Corporation elects to repossess any Goods, Buyer shall permit Seaman Corporation, with or without legal process, to enter all premises where the Goods are located to remove or take possession of the same. Ten (10) days advance notice of any intended disposition of repossessed Goods shall be deemed reasonable.
19. Cancellation or Changes of Order.
- No order may be withdrawn or cancelled by Buyer, nor may Buyer defer the shipment of Goods that are ready to be shipped to Buyer pursuant to an order, or delay the performance of Services, in each case, unless Seaman Corporation shall first be paid a cancellation or deferral charge of a reasonable amount acceptable to Seaman Corporation. If Buyer requests changes in an order after receipt thereof by Seaman Corporation, Buyer shall be responsible for all charges reasonably assessed by Seaman Corporation with respect to such changes.
- In addition to any remedies that may be provided under these Terms and Conditions, Seaman Corporation may terminate an order for Goods and/or Services with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under an order; (ii) has not otherwise performed or complied with any of the terms of these Terms and Conditions; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
Neither Buyer nor any affiliated company or assignee shall have the right to set-off any claims or disputes they might have against Seaman Corporation against any amounts which Buyer owes to Seaman Corporation for Goods sold and/or Services performed. Seaman Corporation shall have the right tocredit toward the payment of any monies that may become due Buyer hereunder any amounts which may now or hereafter be owed to Seaman Corporation.
21. No Protection from Claim of Infringement.
Seaman Corporation makes no express or implied representation or warranty that the delivery or use of any Goods and/or Services by Buyer or its customers or agents shall be free of the claim of any third party that the Goods and/or Services or the use thereof infringe on or violate any intellectual property right, proprietary right or any other right of any third party.
22. Intellectual Property.
Except as expressly set forth in this Section, nothing in these Terms and Conditions shall be construed as a grant or assignment of any license or otherright to Buyer of any of Seaman Corporation’s intellectual property rights, whether patent, trademark, trade secret, copyright, formulas, know-how, orotherwise. All derivative works, improvements and developments related to the Goods and/or the Services or the efforts of Seaman Corporation and Buyer, and all documents, work product, deliverables, and other materials delivered or prepared for Buyer as a part of performing the Services will be owned solely and exclusively by Seaman Corporation, and Buyer shall cooperate with Seaman Corporation in evidencing and confirming that ownership. Buyer shall not modify, decode, clone, disassemble, decompile, decrypt, reverse engineer or otherwise attempt to derive or gain access to any of Seaman Corporation’s intellectual property.
23. Applicable Law.
- These Terms and Conditions and any sale of Goods and/or Services by Seaman Corporation shall be determined and construed in accordancewith, and shall be governed by, the laws of the State of Ohio, excluding its conflict of law principles, and Buyer and Seaman Corporation agree tosubmit to the exclusive jurisdiction and exclusive venue of the appropriate State or Federal court located within Ohio for the purpose of resolvingany dispute or claim arising out of or in connection with these Terms and Conditions and said transaction(s).
- In the event Buyer is an entity formed under the laws of a jurisdiction other than any State of the United States of America, Ohio law shall still govern any sale of Goods to such Buyer, excluding its conflict of law principles, and all disputes arising under any such sale shall be finally settled under the Rules of Arbitration of the International Chambers of Commerce instead of submitting to the exclusive jurisdiction of the appropriate state or federal court within Ohio. The place of arbitration shall be Cleveland, Ohio. The language to be used in the arbitral proceeding shall be English. Thearbitration panel shall consist of three arbitrators, one arbitrator to be appointed by Seaman Corporation, one arbitrator to be appointed by Buyer and the third arbitrator to be appointed in accordance with the Rules of the International Chambers of Commerce. Arbitration awards rendered shall be final and binding and shall not be subject to any form of appeal. The losing party, as determined by arbitrators, shall pay all reasonable out-of-pocket expenses (including, without limitation, reasonable attorneys’ fees) incurred by the prevailing party, as determined by the arbitrators, in connectionwith any dispute unless the arbitrators direct otherwise. Nothing shall preclude either party from seeking interim or permanent equitable or injunctive relief, or both, from any court having jurisdiction to grant the same. The pursuit of equitable or injunctive relief shall not be a waiver of the duty of the parties to pursue any remedy for monetary damages through the arbitration described in this Section. Seaman Corporation and Buyer hereby expressly exclude applicability of United Nations Convention on Contracts for the International Sale of Goods if the same would otherwise apply hereto.
24. STATUTE OF LIMITATIONS.
BUYER AND SEAMAN CORPORATION AGREE THAT, UNLESS OTHERWISE SPECIFIED IN THESE TERMS AND CONDITIONSOR IN ANY APPLICABLE PRODUCT-SPECIFIC WRITTEN WARRANTY, ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF THESE TERMS AND CONDITIONS OR THE SALE OF GOODS AND/OR SERVICES HEREUNDER MUST BE BROUGHT WITHIN ONE YEAR AFTER THE DATE ON WHICH THE GOODS AND/OR SERVICES IN QUESTION WERE DELIVERED TO OR PERFORMED FOR BUYER OR THE DATE ON WHICH THE EVENT GIVING RISE TO THE ACTION OCCURRED, WHICHEVER IS EARLIER.
25. U.S. Government Contracts.
If Buyer is purchasing the Goods and/or Services for a government contract or sub-contract, Buyer shall promptly notify Seaman Corporation of that fact and of any contractual terms from the government procurement laws and regulations that Buyer is obligated to include in its contracts for such Goods and/or Services. No government procurement provisions will be included in these Terms and Conditions or any order unless agreed to in awriting signed by an authorized representative of Seaman Corporation.
26. Business Conduct.
Buyer represents and warrants that none of Buyer, its affiliates and/or their respective employees and agents has engaged in, nor will any of them engage in, any unlawful or unethical conduct (such as making or offering to make any improper or illegal payment or gift to an employee or official of a government, political party or political candidate, government-owned or controlled company or public international organization) to promote Seaman Corporation’s goods and/or services, including the Goods and/or Services, or to promote or facilitate the business interests of Seaman Corporation.
27. Compliance with Law.
Buyer will comply with all applicable trade and other laws, regulations and ordinances affecting the Goods and/or Services supplied by Seaman Corporation, including applicable U.S., foreign, and local laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under an order. Buyer agrees and acknowledges that certain Goods and Services may be subject to export or import control restrictions, as indicated by the export control and harmonized tariff classification on the commercial invoice, if applicable. Buyer shall be responsible for compliance with applicable export and import control restrictions. Seaman Corporation may terminate an order if any governmental authority imposes antidumping or countervailing duties or any other duties or penalties on the Goods. Unless otherwise specified by Seaman Corporation in writing, Goods and Services are supplied by Seaman Corporation for use in the country of purchase only. Export to the Crimea region, Cuba, Iran, Syria, and North Korea (and such other countries or regions that may be designated as sanctioned or embargoed from time to time) may violate U.S. law. Buyer represents and warrants that it is not on any U.S. or other applicable restricted party lists (or owned 50% or more by one or more restricted parties) and will not directly or indirectly engage in any transaction involving the Goods and/or Services with entities or persons subject to U.S. or other applicable restrictions on transactions. Unless otherwise authorized in advance by Seaman Corporation in writing, Buyer shall not use any Goods and/or Services in activities involving nuclear, chemical, or biological weapons, or unsafeguarded nuclear materials, and shall not transfer the same to any third party that would use them in such activities.
28. No Exclusivity; Amendment; No Waiver; Severability; No Assignment, Survival.
In no event shall Buyer be deemed to have any exclusive distribution or other similar rights unless Buyer and Seaman Corporation execute a separate written agreement which expressly provides for such rights. These Terms and Conditions and any order shall not be amended except in a writing signed by both parties. No waiver by Seaman Corporation of any of the provisions of an order is effective unless explicitly set forth in writing and signed by Seaman Corporation. Failure, delay, or any partial exercise by either party of any right, power, or privilege available to such party hereunder shall not operate as a waiver, or preclude further exercise by such party of any other right, power, or privilege. If any provision or any portion of these Terms and Conditions or an order are construed to be illegal, invalid or unenforceable, such provision or portion thereof shall be deemed stricken and deleted from these Terms and Conditions or such order, as applicable, to the same extent and effect as if it were never incorporated herein, but all other provisions of these Terms and Conditions and such order and the remaining portion of any provision that is construed to be illegal, invalid orunenforceable in part shall continue in full force and effect. Buyer shall not assign any of its rights or delegate any of its obligations with respect to anorder of Goods and/or Services hereunder (including without limitation by or as a result of operation of law) without the prior written consent of Seaman Corporation. Any purported assignment or delegation in violation of this Section 28 shall be null and void. No assignment or delegation shall relieve Buyer of any of its obligations thereunder or hereunder. Seaman Corporation may subcontract all or any portion of its obligations with respect to the Goods or Services without Buyer’s consent and may assign any of its rights or delegate any of its obligations to any affiliate or to any entity acquiring all or substantially all of Seaman Corporation’s assets or stock, or as a result of a merger or other similar transaction by operation of law, in each case, without Buyer’s consent. These Terms and Conditions and each order are for the sole and exclusive benefit of the parties hereto and their permitted successors and assigns. Nothing expressed or referred to in these Terms and Conditions or any order will be construed to give any other entity or person any legal or equitable right, remedy or claim under or with respect to these Terms and Conditions or such order. Each party is actingas an independent contractor and not as an agent, partner, or joint venturer with the other party for any purpose. Neither party shall have any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other party. Seaman Corporation’s rights and remedies set forth in these Terms and Conditions and each order shall be in addition to all legal and equitable rights and remedies available to Seaman Corporation. These Terms and Conditions shall survive termination or cancellation of, and completion of work under, any order for Goods and/or Services hereunder.