These General Terms and Conditions apply to, and are incorporated into and made a part of, all Purchase Orders issued by Pacific Maritime Freight, Inc. and its subsidiaries, including but not limited to: Pacific Tugboat Service, Pacific Dredge, and Atlas Towing (hereinafter the “COMPANY”)
- GENERAL PROVISIONS APPLICABLE TO GOODS AND SERVICES
- GOODS, SERVICES & DELIVERABLES.
- Seller agrees to provide to COMPANY the services and/or goods described in any purchase order (the “Goods”), in accordance with these Terms and Conditions (“Agreement”). Upon acceptance of a purchase order, shipment of Goods or commencement of a Service, Seller shall be bound by the provisions of this Agreement, including all provisions set forth on the face of any applicable purchase order, whether Seller acknowledges or otherwise signs this Agreement or the purchase order, unless Seller objects to such terms in writing prior to shipping Goods or commencing Services.
- This Purchase Order is expressly conditioned upon Seller’s acceptance of all of the terms and conditions set forth on the Purchase Order. Seller’s confirmation of this Purchase Order or commencement of delivery of Goods shall indicate Seller’s acceptance of all of the terms and conditions of this Purchase Order, without alteration or amendment. CUSTOMER HEREBY EXPRESSLY OBJECTS TO ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS THAT MAY APPEAR IN ANY PRINTED FORM OR OTHER DOCUMENT OR COMMUNICATION OF SELLER. ANY SUCH ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS SHALL NOT BE EFFECTIVE OR BINDING, NOTWITHSTANDING CUSTOMER’S ACCEPTANCE OF ANY GOODS OR SERVICES, UNLESS SPECIFICALLY AGREED TO IN WRITING BY CUSTOMER. Any objection by Seller to the terms and conditions of this Purchase Order shall be ineffective unless Seller notifies COMPANY in writing such objection by the earlier of commencement of performance, the shipment of the Goods, or ten (10) days of the Date of the Purchase Order.
- COMPANY may, by written change order, make any changes within the general scope of this Purchase Order, including additions to or deletions from the quantities originally ordered, or in the specifications or drawings or in the time and place of delivery. If any such change affects the amount due or the time of performance hereunder, an equitable adjustment shall be negotiated. Any claim for adjustment hereunder must be asserted by Seller in writing within five (5) days from the date of COMPANY’s change order. Nothing herein relieves Seller of its obligation to proceed with the Purchase Order as changed.
- INVOICING. All invoices shall be issued to Pacific Maritime Freight, c/o Accounts Payable, and mailed to the address specified on the Purchase Order. O.B. point and discount terms must be shown on all invoices. If freight is prepaid for account, Seller’s invoice must show freight charges separately and a copy of the freight bill showing payment of such charges must be submitted with the invoice. Any sales tax must be computed before adding freight charges. Invoices will not be processed for payment until all invoiced Goods are received and accepted by COMPANY. COMPANY will remit payment to Seller by mail. Seller agrees not to deliver Goods on a sight draft basis. If COMPANY is entitled to a cash discount, the period of computation thereof will commence on the date of acceptance or receipt of a correctly completed invoice, whichever is later. If COMPANY is entitled to a cash discount and such discount is not included in Seller’s invoice, the period of computation shall commence on the date COMPANY determines that the discount applies. If a price adjustment is requested by COMPANY due to damage or any other reason, the cash discount period shall commence on the date on which COMPANY and Seller agree on an adjusted price, or the date COMPANY agrees that no price adjustment shall be made. Unless otherwise specified on this Purchase Order, payment terms are 30 days from the later of the date a correct invoice is received or the date all invoiced items are received and accepted by COMPANY.
- Seller represents and warrants as follows:
- All Goods, including all replacement Goods furnished by Seller, shall be new, shall conform to all applicable specifications, drawings, samples and descriptions, shall be merchantable and be fit for the particular purpose(s) for which such goods are ordinarily employed and any other purpose(s) specified by COMPANY and shall be free from defects in material, design and workmanship (including damage due to unsatisfactory packaging by Seller). All services provided under this Purchase Order shall be performed in a professional and workmanlike manner consistent with best industry practices. In addition to, and not in limitation of, Seller’s other warranties hereunder, if Seller is responsible for development or design of any items, Seller warrants that all items delivered under this Purchase Order will be suitable for use by COMPANY and others in accordance with the intended purpose, including installation by COMPANY in its ultimate products. COMPANY’s written approval of designs furnished by Seller shall not relieve Seller of its obligations under this warranty.
- All Goods will, when delivered hereunder, be free and clear of all liens, claims or encumbrances of every kind.
- The foregoing express warranties shall be in addition to, and not in limitation of, any warranty customarily made by Seller for its products and services, any other warranty made by Seller to COMPANY, and any implied warranties of any kind or nature, and shall be construed as conditions as well as warranties.
- SELLER’S WARRANTY FOR EACH ITEM AND EACH SERVICE SHALL EXTEND FOR A PERIOD OF TWELVE (12) MONTHS, OR SUCH LONGER PERIOD AS MAY BE OFFERED BY SELLER OR SELLER’S SUPPLIERS, AFTER THE ITEM OR SERVICE IS ACCEPTED BY CUSTOMER AND SUCCESSFULLY USED FOR ITS INTENDED PURPOSE. Notice of defect may be given to Seller at any time within the warranty period except that notice of latent defect or one concealed by fraud or such gross neglect as amounts to fraud may be given at any time. Seller shall, at COMPANY’s option, promptly either repair or replace defective Goods, at Seller’s sole expense. Seller shall also repair or replace any damage caused by defects in the Goods. COMPANY’s continued use of defective Goods pending repair or replacement shall not constitute a waiver by COMPANY. Where COMPANY incorporates that item into a product of COMPANY to be delivered to COMPANY’s customer, Seller’s obligation under this Paragraph shall be for the benefit of COMPANY’s customer and shall extend to one year after application of the item to its intended use by COMPANY’s customer.
- Seller shall be liable for all damages both to COMPANY and COMPANY’s customers incurred as a result of any defect or breach of warranty in any item or service covered by this Purchase Order, in addition to, and not in limitation of, other available remedies.
- The warranties, representations and covenants of Seller shall survive the delivery and acceptance of the Goods and payment under this Purchase Order and shall be fully enforceable thereafter. Seller’s warranty hereunder is part consideration for this Purchase Order. Any payment by COMPANY hereunder is conditional upon this warranty remaining in effect; and no modification or other change of this warranty shall be valid unless specifically authorized by COMPANY in writing.
- Seller shall defend, indemnify and hold harmless COMPANY and its directors, officers, employees and agents from and against any and all liabilities, costs and expenses, including attorneys’ fees, arising from any claims asserted or commenced by any person or entity alleging that the indemnified parties, Seller or any consultant or subcontractor of Seller are infringing upon any patent, copyright, trademark, or service mark, or are misappropriating any proprietary information or trade secrets by reason of the production, sale, and provision of the goods or services to COMPANY or COMPANY’s use thereof. Seller warrants and represents that Seller has no knowledge of any patent, copyright, trademark, trade secret, service mark or proprietary information that is or will be alleged to be infringed upon or misappropriated by the proposed activities hereunder. In addition to and not in lieu of the foregoing, if the person or entity alleging such infringement is successful in the prosecution of its claims, Seller shall, at its sole cost and expense, either (i) obtain the right of COMPANY to use the goods, in which case Seller shall pay all royalties, license fees and other fees with respect thereto, or (ii) obtain a substitute or replacement for the infringing goods or portion thereof reasonably acceptable to COMPANY.
- OWNERSHIP OF WORK PRODUCT.
- For purposes of this Agreement, “Work Product” shall include, without limitation, all designs, discoveries, creations, works, devices, masks, models, work in progress, Service deliverables, inventions, products, computer programs, procedures, improvements, developments, drawings, notes, documents, information and materials made, conceived, or developed by Seller, alone or with others, which result from or relate to the Services performed hereunder. Standard Goods manufactured by Seller and sold to COMPANY without having been designed, customized, or modified for COMPANY do not constitute Work Product.
- All Work Product shall at all times be and remain the sole and exclusive property of COMPANY. Seller hereby agrees to irrevocably assign and transfer to COMPANY and does hereby assign and transfer to COMPANY all of its worldwide right, title, and interest in and to the Work Product including all associated intellectual property rights. COMPANY will have the sole right to determine the treatment of any Work Product, including the right to keep it as trade secret, execute and file patent applications on it, to use and disclose it without prior patent application, to file registrations for copyright or trademark in its own name, or to follow any other procedure that COMPANY deems appropriate. Seller agrees: (i) to disclose promptly in writing to COMPANY all Work Product in its possession; (ii) to assist COMPANY in every reasonable way, at COMPANY’s expense, to secure, perfect, register, apply for, maintain, and defend for COMPANY’s benefit all copyrights, patent rights, mask work rights, trade secret rights, and all other proprietary rights or statutory protections in and to the Work Product in COMPANY’s name as it deems appropriate; and (iii) to otherwise treat all Work Product as COMPANY Confidential Information as described above. These obligations to disclose, assist, execute, and keep confidential survive the expiration or termination of this Agreement. All tools and equipment supplied by COMPANY to Seller shall remain the sole property of COMPANY.
- Seller will ensure that Seller’s employees appropriately waive any and all claims and assign to COMPANY any and all rights or any interests in any Work Product or original works created in connection with this Agreement. Seller irrevocably agrees not to assert against COMPANY or its direct or indirect customers, assignees, or licensees any claim of any intellectual property rights of Seller affecting the Work Product.
- COMPANY will not have rights to any works conceived or reduced to practice by Seller which were developed entirely on Seller’s own time without using equipment, supplies, facilities, or trade secret or COMPANY Confidential Information, unless (i) such works relate to COMPANY’s business, or COMPANY’s actual or demonstrably anticipated research or development, or (ii) such works result from any Services performed by Seller for COMPANY.
- EXTENSION OF BENEFITS. All exceptions, exemptions, defenses, immunities, limitations of liability, privileges and conditions granted or provided by this Order to the benefit of Customer shall also apply to and for the benefit of all corporations parent of, subsidiary to, affiliated with or under the same management as Customer, as well as all directors, employees and agents of said entities.
- Seller shall indemnify, defend and hold COMPANY and COMPANY’s officers, agents, employees and customers harmless from and against all claims, losses, expenses, damages, causes of action and liabilities of every kind and nature, including, without limitation, reasonable attorney’s fees, arising from or out of any breach or alleged breach of any of Seller’s obligations or warranties hereunder or from other acts or omissions of Seller or Seller’s officers, agents, employees, subcontractors, and guests, unless solely caused by the negligence, gross negligence or willful misconduct of the COMPANY. Seller shall obtain and maintain adequate insurance to cover and support Seller’s indemnification obligations under this Purchase Order. Seller shall not settle any indemnified claim without COMPANY’s prior, written consent
- COMPANY may terminate this Purchase Order, in whole or part, for COMPANY’s convenience, by giving notice to Seller at any time. If terminated for COMPANY’s convenience, any claim of Seller shall be limited to the reasonable, documented costs Seller has actually and directly incurred in the performance of the Purchase Order through the date COMPANY provides notice of termination.
- COMPANY may, without penalty or liability to COMPANY, by written notice of default to Seller, cancel the whole or any part of this Purchase Order or exercise any other remedy provided to Customers of goods by law or in equity, including, without limitation, any remedy under the Uniform Commercial Code (RCW 62A), in any of the following circumstances:
- If Seller fails to make delivery of any Goods or to perform any services within the time specified in this Purchase Order, or any extension thereof agreed to in writing by COMPANY;
- If, in COMPANY’s good faith judgment, Seller fails to perform any of the other provisions of this Purchase Order or fails to make progress so as to endanger performance of this Purchase Order in accordance with its terms and does not cure such failure within a period of ten (10) days, or such longer period as COMPANY may authorize in writing, after receipt of notice from COMPANY specifying such failure;
- Seller is in breach of any of the terms or conditions of this Purchase Order; or
- If Seller becomes insolvent or makes an assignment for the benefit of creditors, or if there shall be instituted by or against Seller any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt or insolvency law of any jurisdiction or for the appointment of a receiver or trustee in respect to any of Seller’s property and such proceeding is not dismissed or cured within sixty (60) days.
- COMPLIANCE WITH LAWS/REGULATIONS. Seller shall comply with all applicable laws and regulations of government authorities, including among other things, Executive Order 11246, as amended, 38 USC 4212 on the Vietnam Era Veterans Readjustment Assistance Act of 1974, Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Part 60-1 through 60-60, 60-250, and 60-741, matters involving the Civil Rights Act of 1964, wages, hours, materials, race, color, sex and creed of workmen, price regulations and renegotiation provision, and other matters, whether or not specifically mentioned herein. Seller shall comply with the provisions of the Occupational Safety and Health Act of 1970, the standards and regulations issued hereunder and all pertinent State occupational safety and health laws such as “Right-to-Know” regulations. Hazard communication information such as complete Material Safety Data Sheets (MSDS) shall be supplied to Customer for all hazardous material. Seller further agrees to indemnify and hold harmless Customer for any loss, damage, fine, penalty or any expense whatsoever as a result of Seller’s failure to comply with such laws and regulations. While on Customer’s facilities, Seller shall comply with all Customer rules, policies, procedures and best management practices.
- EQUAL EMPLOYMENT OPPORTUNITY. Unless exempted by Presidential Executive Order 11246 and applicable regulations thereunder, Seller:
- Certifies that it does not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin or any other basis prohibited by law. Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.
- Agrees that if the Purchase Order price is in excess of $10,000, the Equal Opportunity Clause contained in the COMPANY’s Policy of Equal Opportunity Compliance Certification Procedures, as may be amended from time to time, is hereby incorporated by reference;
- Agrees that if the Purchase Order price is in excess of $50,000, Seller shall furnish the COMPANY with a written Affirmative Action Compliance Program Certificate within 120 days of the date hereof.
- Agrees to execute COMPANY’s Equal Employment Opportunity Agreement and Certification, if requested.
- Seller shall not assign this Purchase Order, in whole or in part, or the right to any payment due hereunder, without COMPANY’s prior written consent. Any unauthorized assignment of this Purchase Order by Seller, by operation of law or otherwise, shall be void. This Purchase Order shall inure to the benefit of each party’s successors and authorized assigns.
- No advertising or publicity matter having or containing any reference to COMPANY or any of its staff members shall be made by Seller or anyone on Seller’s behalf without COMPANY’s prior, written consent in each instance.
- Seller acknowledges that the terms of this Purchase Order are confidential, and agrees not to disclose the terms or other information in or in connection with this Purchase Order to any third party, except to Seller’s legal and financial advisors who are obligated to keep such information confidential and as necessary for Seller to perform Seller’s obligations under this Purchase Order, and as otherwise specifically agreed in writing by COMPANY. Seller further acknowledges that information disclosed to Seller by COMPANY, or developed in the course of this Purchase Order by either party, alone or with others, is COMPANY’s property and COMPANY’s confidential information, shall be used by Seller only as necessary to perform Seller’s obligations under this Purchase Order and shall not be disclosed by Seller to any third party, except to Seller’s legal and financial advisors who are obligated to keep such information confidential, and as otherwise specifically agreed in writing by COMPANY. The restrictions on disclosure set forth above shall not apply to any information that becomes known to the general public, other than as a result of Seller’s breach of any obligation hereunder; or to any information COMPANY is required to disclose by any court of competent jurisdiction, provided that Seller provides COMPANY with advance written notice of such required disclosure and cooperates with COMPANY in limiting such disclosure and obtaining protective treatment for such information.
- GOVERNING LAW/JURISDICTION. The existence and interpretation of this Purchase Order, the rights of all parties hereunder and the definition of all terms used herein shall be construed under and governed by the substantive laws of the State of California, United States of America, without regard to its conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods is inapplicable to the Purchase Order and the transaction(s) to which this Purchase Order applies. Any dispute arising under or in connection with this Purchase Order and/or the Goods shall be subject to exclusive venue in, and jurisdiction of, the Federal and State courts located in San Diego County, CA, and Seller irrevocably consents to the jurisdiction of such courts for any such dispute.
- DISPUTE RESOLUTION:All controversies, claims, disputes or counterclaims, whether involving a disagreement about meaning, interpretation, application, performance, breach, termination, enforce-ability or validity and whether based on statute, tort, contract, common law or otherwise for which a federal or state court or an administrative agency would be authorized to grant relief (individually, a “Claim” or collectively, “Claims”) shall be resolved by binding arbitration in San Diego, Ca. If the parties are unable to informally settle the dispute the grieving party shall notify the other party in writing. This notification will initiate a thirty (30) day cooling-off period. After the cooling-off period, the grieving party may notify the other party in writing, of his desire to submit the matter to dispute resolution via binding arbitration. The parties shall attempt to mutually agree upon an arbitrator. If the parties are unable to agree upon an arbitrator within ten (10) calendar days of the demand for arbitration, they shall choose an arbitrator from a panel provided by the Superior Court of California, County of San Diego by alternately striking names on the list. Such panel shall have no fewer than seven (7) names. A coin toss will decide which party will have the first strike. The arbitrator shall not have the power to add to or modify any of the terms, conditions, sections or articles to the Agreement or Pacific Harbor Freight Terms and Conditions. The arbitrator’s decision shall not go beyond what is necessary for the interpretation and application of the Agreement or Pacific Harbor Freight Terms and Conditions in the case of the specific grievance at issue. The fees and expenses of the arbitrator shall be borne equally by the parties except where one of the parties to the agreement requests a postponement of a previously scheduled arbitration hearing which results in a postponement charge. The postponing party shall pay such charge unless such postponement results in a settlement of the grievance, in which case the postponement charge shall be borne equally by the parties. A joint postponement request shall be borne equally by the parties. The parties are responsible for their own attorney fees and attorney fees may not be awarded by the arbitrator. Nothing in this section precludes the parties from mutually agreeing upon other means of deciding matters upon which there has been disagreement.
- INTENDED BENEFICIARIES. Whenever the COMPANY is not the ultimate consumer of the Goods, all rights, benefits, warranties, indemnities and remedies conferred upon COMPANY by this Purchase Order shall accrue to and are intended by the parties hereto for the express benefit of such client or user of the Goods, as intended beneficiaries of this Purchase Order.
- Seller shall not assign this Purchase Order, in whole or in part, or the right to any payment due hereunder, without COMPANY’s prior written consent. Any unauthorized assignment of this Purchase Order by Seller, by operation of law or otherwise, shall be void. This Purchase Order shall inure to the benefit of each party’s successors and authorized assigns.
- In the event any provision of these Terms and Conditions conflict with the law under which this Purchase Order is to be construed or if any such provision is held illegal, invalid or unenforceable, in whole or in part, by a court, arbitrator or other competent authority, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law. The legality, validity and enforceability of the remaining provisions shall not be affected thereby and shall remain in full force and effect.
- FORCE MAJEURE. COMPANY shall not be liable or responsible for delays or failures in performance resulting from events beyond the control of COMPANY. COMPANY may delay delivery and/or acceptance of the Goods or postpone performance of COMPANY’s obligations hereunder and not be liable for any such delay or failure to perform due to causes beyond its control.
- LIMITATION OF DAMAGES. IN NO EVENT SHALL CUSTOMER BE LIABLE TO SELLER OR ANY OTHER PERSON OR ENTITY FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, UNDER OR WITH RESPECT TO THIS PURCHASE
- PROVISIONS APPLICABLE TO GOODS
- IDENTIFICATION. All invoices, packing lists, packages, shipping notices, instructions, manuals and other written documents relating to or affecting this Purchase Order and/or the Goods shall include the applicable PO Number. Packing lists shall be enclosed in each box or package shipped pursuant to this Purchase Order, specifying the contents therein.
- SHIPPING INSTRUCTIONS
- All Goods must be suitably packaged, marked and shipped in accordance with the requirements of common carriers in a manner to secure the lowest transportation costs, and shall be shipped freight prepaid, F.O.B. Destination, unless otherwise specified on the Purchase Order. Packing lists shall be placed in each shipment. If authorized by COMPANY in writing, Goods may be shipped F.O.B. Shipping Point, but Seller shall prepay all shipping charges, and route the Goods by the carrier specified by COMPANY, or if no carrier is specified, by the cheapest common carrier appropriate for the Goods. COMPANY reserves the right to reject C.O.D. shipments. Seller shall not insure the Goods for COMPANY’s account during shipment except upon COMPANY’s written request, or where the approved shipping mode is parcel post.
- Seller shall label containers of all Goods as required by labeling and other laws, statutes and regulations (Federal, State and local) of the location(s) from, to and through which such Goods are shipped, including, without limitation, all Goods that are known to constitute a toxic, health, poison, fire or explosive hazards.
- DELIVERY. Time is of the essence in delivery of the Goods under this Purchase Order. All deliveries are to be made in the quantities and at the time(s) specified in this Purchase Order. If Seller fails to deliver Goods in the quantities and at the time(s) specified, COMPANY may, without limiting COMPANY’s other rights or remedies, either (a) direct expedited routing, and any excess costs incurred thereby shall be paid solely by Seller and subject to offset by COMPANY; or (b) terminate this Purchase Order. No change in the scheduled delivery date or performance will be permitted without COMPANY’s prior written consent. No acceptance of Goods after the scheduled delivery date will waive COMPANY’s rights with respect to such late delivery, nor shall it be deemed a waiver of future compliance with the terms hereof. Goods delivered in advance of schedule may, at COMPANY’s option (i) be returned at Seller’s expense for scheduled delivery; (ii) have payment therefor withheld by COMPANY until the date that such Goods are actually scheduled for delivery; or (iii) be placed in storage for Seller’s account and at Seller’s expense until the scheduled delivery date(s). Delivery in accordance with this Purchase Order does not constitute acceptance by COMPANY.
- INSPECTION, QUALITY CONTROL AND ACCEPTANCE.
- All goods and services covered by this Order are subject to inspection by Customer at any time or place and may be rejected if not strictly in accordance with all terms, conditions and provisions herein contained or attached.
- COMPANY shall have a reasonable time after receipt of Goods or Service deliverables and before payment to inspect them for conformity hereto, and performance hereunder shall not be deemed accepted until COMPANY has run an adequate test to determine whether the Goods and Services conform to the specifications hereof. Use of a portion of the Goods for the purpose of testing shall not constitute an acceptance of the Goods. If performance tendered does not wholly conform with the provisions hereof, COMPANY shall have the right to reject such performance. Customer’s count shall be accepted as final on all shipments whether or not accompanied by a packing list.
- At Customer’s option, inspection and tests before delivery may be made by Customer or Customer’s customers at Seller’s premises or elsewhere, at reasonable times and places, and Seller will provide sufficient safe and proper facilities for such inspection or testing; but, notwithstanding such inspection and tests, or inspections and tests made prior to the issuance of this Order, the goods and services covered by this Order are subject to rejection upon final test. Inspection and use upon delivery to the premises of Customer and Customer’s customer.
- Seller shall provide COMPANY appropriate material certifications as described on the Purchase Order, including but not limited to, American Bureau of Shipping Inspection Certificates, material, physical and/or chemical analysis certifications, Cal/OSHA Material Safety Data Sheets, and U.S. Coast Guard acceptance certifications, and such other certifications as COMPANY may request or as may be required under applicable law, statute or regulation.
- If a specific brand is specified in this Purchase Order for any Goods, the Goods purchased must meet the standards for quality, performance, and use of such brand. Subject to COMPANY’s prior, written approval, Seller may provide items equivalent to the designated special brand, provided that Seller must first provide COMPANY with descriptive literature identifying such equivalent brand, including the quality, performance and specifications therefor. If COMPANY elects to accept Goods purported to be equal to the special brand designated in this Purchase Order, such election shall not limit or restrict COMPANY’s right to inspect and reject such Goods as provided hereunder, or any other right or remedy of COMPANY.
- Payment for shipments and/or progress payments for work in progress shall not constitute acceptance thereof, and defective shipments or performance and/or shipments not in accordance with this Order will, at Customer’s option, be held for Seller’s instructions at Seller’s risk, or will be returned to Seller. Seller will be responsible for transportation charges on returned shipments both ways. Any prior payment made by Customer on such rejected goods or services shall be immediately refunded, and the rejected goods or services shall not be replaced or re-performed without an additional order from Customer.
- RISK OF LOSS. Regardless of F.O.B. point, Seller agrees to bear all risk of loss, injury, or destruction of Goods occurring prior to passage of title in such Goods to COMPANY. Title to Goods shall pass to COMPANY upon delivery of the Goods to COMPANY at the address specified on the Purchase Order and COMPANY’s acceptance thereof in accordance with this Purchase Order. No loss, injury, or destruction shall release Seller from any obligations hereunder. Seller shall be solely responsible for asserting any claims against the carrier and for maintaining any required insurance against loss in transit. If the Goods ordered are destroyed prior to title passing to COMPANY, COMPANY may at its option cancel the Agreement or require delivery of substitute Goods of equal quantity and quality. Such delivery will be made as soon as commercially practicable. If loss of Goods is partial, COMPANY shall have the right to require delivery of the Goods not destroyed.
- INTENDED USE. UNLESS OTHERWISE STATED ON THE PURCHASE ORDER, THE GOODS ORDERED ARE TO HAVE AN INTENDED USAGE IN THE CONSTRUCTION, REPAIR OR MODIFICATION TO BARGES, TOWBOATS, CUSTOMER VESSELS OR OTHER MARINE-RELATED FLOATING EQUIPMENT.
- SPECIAL TOOLING, DRAWINGS OR SPECIFICATION.
- Seller is responsible for the protection, calibration, maintenance and care, other than normal wear, of all tooling and equipment owned by COMPANY and used under or in relation to this Purchase Order. Said tooling or equipment shall be subject to surveillance and/or inspection upon notice and shall be returned in an acceptable condition upon demand or notice from COMPANY.
- Except as otherwise specified in this Purchase Order, any special tooling, including jigs, dies, fixtures, molds, patterns, special gauges, special test equipment and other items shall be furnished by and at the expense of Seller for the COMPANY, shall be stamped or painted “Property of Pacific Maritime Freight”, and shall be stored separately when not in use. Special tooling shall be kept in good condition by Seller and when necessary, replaced by Seller without expense to the COMPANY. Title to special tooling shall be in COMPANY; and all parts made from COMPANY’s special toolings are to be supplied to COMPANY exclusively.
- Any drawings and specifications prepared by Seller are the property of COMPANY and shall be marked “Property of Pacific Maritime Freight” and shall be stored separately when not in use. Such drawings or specifications will be sent to Pacific Maritime Freight, 1444 Cesar E. Chavez pkwy, Attention: Purchasing Agent, when the Purchase Order is completed. Seller hereby irrevocably assigns to COMPANY all right, title and interest in and to such drawings and specifications, including, without limitation, all copyright, trademark and other intellectual property rights therein.
- PROVISIONS APPLICABLE ONLY TO SERVICES
- SERVICE OR INSTALLATION OF WORK. In the event this Purchase Order requires the performance of services or installation of goods by Seller upon any property or project of COMPANY, the following conditions shall apply, in addition to, and not in limitation of, the other provisions hereof:
- Seller shall take precautions to protect all property and persons from damage or injury arising out of its work and shall comply with all fire, safety and other applicable regulations prescribed by any governmental agency and by COMPANY and/or the owner of the premises upon which work is being performed, and shall be responsible for the observance thereof by all subcontractors, employees, agents and representatives of Seller and its subcontractors. Seller shall also obtain at its own expense and provide COMPANY with proof of insurance coverage satisfactory to COMPANY for workmen’s compensation and property damage, public liability, personal injury, employer’s liability and longshore and harbor workers insurance.
- If the Purchase Order or drawings and specifications relating to a Purchase Order specify that Seller shall install or incorporate items of materials, machinery, equipment and outfitting to be furnished by COMPANY, Seller, at its’ own expense shall be responsible for installing all COMPANY furnished items to the manufacturer’s recommended specifications prior to redelivery. Seller shall receive, inspect, inventory, store, and protect from exposure to weather, excessive heat, cold or humidity, theft or vandalism, and install to the manufacturer’s recommended specifications prior to redelivery all such items. Seller shall notify COMPANY’s Representative upon receipt of all COMPANY-furnished items. Notification should include all items received, date received, condition, serial number, and other relevant information.
- Seller shall keep the premises and work free and clear of all mechanics and materialmen’s liens or claims. Seller shall promptly pay for all labor and material and, if Seller fails to do so, COMPANY, without waiving any rights or remedies against Seller for or by reasons of such failure, may, but without any obligation to do so, pay the same and deduct the amount of such payments from sums due Seller hereunder; and COMPANY may withhold any payment to Seller until receiving such affidavits, waivers and releases with respect to claims for labor and materials as COMPANY may require.
- The work shall remain at Seller’s risk prior to written acceptance by COMPANY and Seller shall replace at its own expense all work damaged or destroyed by any cause whatsoever.
- Seller shall observe and comply with, to the extent required by COMPANY, the wages, hours and working conditions established by COMPANY on the project or required of COMPANY by an applicable labor agreement.
- COMPANY is interested only in the results obtained under this Agreement; the manner and means of achieving the results are subject to Seller’s sole control. Seller is an independent contractor for all purposes, without express or implied authority to bind COMPANY by contract or otherwise. Neither Seller nor its employees, agents or subcontractors (“Seller’s Assistants”) are agents or employees of COMPANY, and therefore are not entitled to any employee benefits of COMPANY, including but not limited to, any type of insurance. Seller shall be responsible for all costs and expenses incident to performing its obligations under this Agreement and shall provide Seller’s own supplies and equipment.
- Seller shall perform its work in accordance with the schedules and work programs established by COMPANY and shall fully cooperate with COMPANY and others engaged in work on the project so that the work on the entire project may be performed with the utmost speed, consistent with good practices. In case of conflict, COMPANY may direct the necessary coordination.
- Seller shall carry on its work so that the premises shall at all times be clean, orderly and free from debris and upon completion shall remove all equipment and unused materials from the project, clean up all refuse and debris and leave the site of the work clean, orderly and in good condition.
- Seller shall require Seller’s employees, agents, contractors or subcontractors to abide by COMPANY’s Work and Safety rules when work or services are performed at COMPANY’s premises. COMPANY has the right to exclude personnel from COMPANY’s premises who do not abide by such rules, and at COMPANY’s election, to declare a default under this Purchase Order.
- Seller is solely liable for its employees, agents, contractors and subcontractors and their actions and omissions while on COMPANY’s premises. The Seller shall indemnify, defend and hold COMPANY and COMPANY’s officers, agents, employees, customers and vendors harmless from and against all losses, claims, expenses, damages, causes of action and liabilities of every kind and nature, including, without limitation, reasonable attorneys’ fees, arising from or out of the presence or any act or failure to act of Seller’s employees, agents, contractors and subcontractors while on COMPANY’s premise and/or performing services under this Purchase Order, unless such damages are caused solely by the COMPANY’s negligence, gross negligence or willful misconduct. Seller shall not settle any indemnified claim without COMPANY’s prior, written consent
- Seller, at its sole cost and expense (including the cost of all deductibles), shall procure and maintain in force during the term of this Agreement the following insurance coverages which shall apply independently of indemnity obligations contained within these Terms and Conditions. Insurance secured by Seller shall be primary insurance and not excess over or contributory with any valid, existing and applicable insurance carried by COMPANY.
- Workers Compensation insurance as required by law for all employees, agents and subcontractors of Seller; and Employer’s Liability insurance in an amount not less than $2,000,000 each accident. Such insurance shall provide coverage in the location in which the work is performed and the location in which the Seller is domiciled. If there is an exposure of injury or illness under the U.S. Longshore and Harbor Workers Compensation Act (including the Outer Continental Shelf Lands Act), the Jones Act, Admiralty Act, Death on the High Seas Act and/or other statutes applicable to maritime employees, Seller agrees to maintain insurance for such injuries or illnesses, and to provide evidence of such insurance as applicable with minimum limits of $2,000,000 per occurrence and $2,000,000 in the aggregate.
- Commercial General Liability insurance, on a per occurrence basis, endorsed to cover premises, operations, products/completed operations, personal injury and contractual liability; with watercraft exclusions deleted and “in rem” coverage as may be applicable; at a minimum limit of $5,000,000 any one accident or occurrence.
- Automobile Liability insurance, covering Seller’s owned, rented, leased, non-owned and hired vehicles; Limits of liability not less than $2,000,000 any one occurrence.
- As applicable:
(1) If Consulting Services are being performed under this Agreement: Professional Liability/ Errors & Omissions Liability insurance with limits not less than $1,000,000 any one occurrence.
(2) With respect to the delivery of fuel or other hazardous products, or waste disposal operations performed by Seller: Pollution insurance or Environmental Impairment insurance with limits of liability not less than $5,000,000 per occurrence, and any other public liability or environmental impairment coverage required by Federal, State or local regulatory authorities.
(3) Should the Services supplied under this Agreement include use of Seller’s vessels:
(i) Protection & Indemnity insurance to be evidenced through a full entry with an international P&I Club, including collision liability, tower’s liability, and liability for seepage, pollution, containment and cleanup, with extensions for marine contractual liability, removal of wreck, etc., subject to a minimum limit of liability of $5,000,000 any one accident or occurrence. Alternatively, if a full entry in an international P&I Club is not available or applicable, maritime liability coverage should be evidenced on an SP-23 form or equivalent including collision liability, tower’s liability and third-party statutory liability for seepage, pollution, containment and cleanup, with extensions for marine contractual liability, wreck / debris removal, subject to a minimum limit of liability of $5,000,000.
(ii) Hull & Machinery insurance including collision liability with sistership clause unamended, with limits of liability at least equal to the full value of all vessels used in connection with performance of the Work required under this Agreement, and with navigational limitations adequate for the Seller to perform the specified Work. Where vessels engage in towing operations, said insurance shall include full tower’s liability with sistership clause unamended.
(4) If the performance of the Work requires the use of any aircraft that are owned, leased, rented or chartered by Seller or any of its subcontractors, Aircraft Liability or Non-Owned Aircraft Liability insurance shall be maintained, as applicable, with a minimum limit of $5,000,000 per occurrence, including passengers and crew.
- The Workers Compensation/Employers Liability insurance policy shall be endorsed to waive all rights of subrogation against Pacific Harbor Freight, (and the Vessel if applicable), and shall contain an “In Rem” endorsement, along with an endorsement providing Pacific Harbor Freight with thirty (30) days advance written notice of cancellation. Sellers in states with “State Fund” Workers Compensation must provide proof of coverage through the State Fund. All other policies shall be endorsed to name Pacific Harbor Freight, its parent, subsidiary or affiliated companies and their shareholders, officers, directors, agents and employees (and the Vessel if applicable) as Additional Insureds with a Waiver of Subrogation, along with an endorsement providing Pacific Harbor Freight with thirty (30) days advance written notice of cancellation..
- In no event shall the amount or scope of insurance described herein place any limitation on the liability assumed by Seller, and should Seller maintain insurance limits higher than the limits listed above, Pacific Harbor Freight shall benefit from those higher limits.
- Seller shall require their subcontractors performing hereunder to maintain insurance of the types and amounts required of Seller.
- Policies of Seller shall be primary to any insurance carried by or available to COMPANY and any “other insurance” clauses under Seller’s policies shall be amended accordingly. Should Seller fail to procure or maintain any of these insurance coverages, or by any act or omission vitiate or invalidate any of the aforesaid insurance coverages, Seller shall pay to COMPANY all losses and indemnify COMPANY against all claims and demands which would otherwise have been covered by such insurance.
- Irrespective of the requirements as to insurance to be carried by Seller or their subcontractors as provided herein, insolvency, bankruptcy, or failure of any insurance company to pay all claims accruing shall not be held to relieve Seller of any of its obligations. Such insurance shall be written with Insurers carrying no less than a “A-VII” rating from A.M. Best’s. Commencement of operations without receipt of the required Certificates of Insurance shall not constitute a waiver of the obligation of the Seller to maintain the required insurance coverages and to provide COMPANY with Certificates of Insurance (at the following address).
Risk Management Department
Pacific Maritime Freight
1444 Cesar E. Chavez Pkwy, San Diego, CA 92113
Tel: (619) 533-7932
- Certificates evidencing Seller’s compliance with these insurance requirements shall be delivered to COMPANY upon issuance of a contract or purchase order and renewals thereof sent to COMPANY upon expiration of the respective policy terms. Seller, its insurance broker or insurer shall be obligated to immediately notify COMPANY in writing of any cancellation of required coverage or any material change therein.
- INDEPENDENT CONTRACTOR. Seller shall determine the manner and method of performing the services and shall operate as an independent contractor and not as an agent or employee of Customer.
END OF PACIFIC MARITIME FREIGHT’S PURCHASE ORDER GENERAL TERMS AND CONDITIONS