1.0 ENTIRE AGREEMENT & PURCHASE ORDERS
1.1 A “Purchase Order” means any written or electronic order issued by IMTT to Seller for the purchase of products (“Products”) and/or services (“Services”), including these Terms and Conditions (“Terms”) and any attachments thereto. Unless a Purchase Order is issued pursuant to an executed master agreement between International-Matex Tank Terminals LLC (“IMTT”) and the person or entity identified as supplier (“Seller”), these Terms constitute the sole and complete agreement between the parties with respect to the Products and/or Services specified in the applicable Purchase Order. No other documents, including Seller’s proposals, invoices, quotations, or acknowledgments, shall become part of the Terms unless approved in writing by IMTT, and no waiver or modification of the Terms shall be binding unless in writing and signed by an authorized representative of each party. Where a Purchase Order is issued pursuant to an executed master agreement between IMTT and Seller, such master agreement shall control over any conflicting terms herein.
1.2 Each purchase order shall be shown on all invoices, packing slips, and/or bills of lading.
1.3 Except as provided herein, after acceptance, these Terms shall not be subject to modification except by a writing setting forth the terms of such modifications and signed by the parties hereto.
1.4 In the event of any proceedings by or against Seller, voluntary or involuntary, in bankruptcy or insolvency, or for the appointment of a receiver or trustee, or an assignee for the benefit of creditors, of the property of Seller’s Company, or in the event of a breach by Seller of any of the terms hereof, including any warranties made in connection with the Products ordered hereunder, Company shall have the right to cancel this and any or all other orders or agreements between both parties or to reduce the quantities of goods to be delivered hereunder.
2.0 PRODUCTS
2.1 The Products shall conform to the design and production specifications set forth in body of purchase order, except as such specifications are modified by the mutual written agreement of the parties.
2.2 The shipment of the Products and/or the performance of any services (or the delivery of any deliverable arising therefrom) shall constitute acceptance by the Seller of the terms and conditions contained in these Terms. Any terms contained in any invoice or other acknowledgement of these Terms by Seller or proposed at any time by Seller in any manner, written or oral, which add to, vary from, or conflict with the terms and conditions in these Terms are deemed to be material alterations, and notwithstanding any acceptance of the Products by Company or other course of conduct, such terms shall be deemed objected to and rejected by Company without need of further notice thereof and shall be of no effect or in any circumstances binding upon Company unless expressly accepted by Company in writing. Written acceptance or rejection by Company of any particular additional term or condition shall not constitute an acceptance by Company of any other additional term or condition.
3.0 PRICING
3.1 Seller warrants that the price, as more fully set forth on purchase order, is the lowest price for the Products charged by Seller to purchasers of a class similar to Company under conditions similar to those specified under these Terms and do not exceed the prices allowed by law. Seller warrants that all discounts and allowances afforded to Company are favorable as those then offered by Seller to purchasers of a class similar to Company. Seller warrants that any price reduction made with respect to the Products subsequent to execution of these Terms will be applicable to these Terms. Except as otherwise expressly provided in these Terms, no charges or adjustments to the Price shall be permitted, except with Company’s prior written approval.
3.2 Before proceeding with shipping of any Products involving possible claims by Seller for extra compensation above the price specified on purchase order, Seller shall submit to Company a detailed statement of such items, together with the price thereof in the form of an order acknowledgement. If Company desires to have the Products furnished at the price so stated, Company shall revise purchase order to reflect the change in price. Claims for compensation above the prices specified on purchase order shall be allowed only on presentation of such written instructions of Company.
4.0 INVOICING
4.1 If invoices subject to cash discounts are not mailed on the date of shipment, discount period shall be calculated from receipt date of the invoice or material, whichever is more favorable to Company. Company reserves a minimum of ten days from receipt of the invoice for processing and mailing payment.
4.2 As a condition to payment of the purchase price or any progress or installment payment thereof, Seller must comply with the invoicing procedures of Company. Company may withhold payment or return invoices to Seller without liability or loss of discount privileges if: (i) invoices do not conform to Company’s invoice procedures or contain errors; (ii) any portion of the Products delivered to date have proved not to be in strict conformity with the requirements of these Terms and Seller has failed to cure the non-conformity; or (iii) there is an on-going breach by Seller of a material term of these Terms.
4.3 Seller’s acceptance of final payment shall constitute a waiver by Seller of its claims relating to or arising from these Terms. Seller’s right to claim for or recover any alleged underpayment by Company shall be waived, unless the claim is made in writing and is received by Company within 180 days after the end of these Terms, and if no contract term, within 180 days after final acceptance by Company of the Products.
4.4 Seller must submit its invoices within 60 days after the product(s) described in the invoice is delivered. Any product(s) for which Seller does not submit an invoice within such period shall be at Seller’s risk and will not be compensated.
5 PAYMENT TERMS: As noted on Purchase Order.
6 PRODUCTS DESTINATION: As noted on Purchase Order.
7. FREIGHT TERMS: As noted on Purchase Order.
8.0 SHIPPING
8.1 Seller shall ship the Products via the means of shipment specified in these Terms, or if none is specified, via a means of shipment that is appropriate for the type, volume, and value of the Products, and considering the applicable delivery schedule. Seller shall comply, or cause its carrier to comply, with Company’s facility access requirements applicable to the facility where the Products shall be delivered.
8.2 Shipments or deliveries hereunder shall be made at the time and in the manner specified. On all shipments, Seller shall promptly notify Company with respect to the shipping point and the initial carrier and if Company is to assume freight charges, routing must be secured from Company before shipment is made. Seller’s obligations of prompt shipment, delivery, and notification in accordance with the terms hereof are each of the essence of these Terms and Seller’s failure in any such respect shall constitute a ground for rejection of the Products by Company.
8.3 Please Note: International shipments shall be transported using Incoterm: DDP (Delivered Duty Paid – Seller absorbs all cost). Should Contractor/Seller not be able to import on Company’s behalf, Seller shall advise Company immediately (or some time period Company specifies) that Seller cannot meet this requirement, so Company may plan for US Customs clearance accordingly.Seller shall be responsible for appropriate packing, marking, and protection of the Products and for proper loading, blocking, and covering to adequately assure safe transit to the destination. No charges shall be allowed for boxing, crating, drayage, or storage unless expressly specified on the face hereof.No obligations are assumed by Company with respect to Products shipped in excess of the requirements of the purchase order, unless agreed upon in writing. No drafts for purchases made by Company shall be honored unless agreed to in writing by Company.
8.4 Purchase Order numbers shall be shown on all packing slips and/or bills of lading.
9.0 TITLE TO PRODUCTS AND RISK OF LOSS: Unless otherwise specified in these Terms, title to the Products shall pass to Company upon payment thereof by Company. Unless otherwise specified in these Terms, risk of loss shall pass to Company upon delivery of the Products to Company’s facility.
10 LIENS: Seller shall protect, indemnify, defend and hold Company and parties in privity with Company harmless from, and shall keep the equipment and property of Company and that of parties in privity with Company free and clear of, all liens, claims, assessments, fines and levies created or caused by Seller or its subcontractors or suppliers, except such statutory and/or common law liens on the property of Company as Seller itself may have pending full and final payment with respect thereto. Upon request, Seller will provide Company with a sworn affidavit from an authorized representative attesting that its subcontractors and suppliers have been fully paid in accordance with these Terms. Company has the right to withhold from any sum due hereunder retainage in the amount of ten percent (10%) of the price due for Work, and to remit such retainage only after the Work is completed and Seller has established to Company reasonable satisfaction that all claims for labor and materials have been satisfied and that there are no unsatisfied claims against Company or its property. Company may deduct from any sums due hereunder any amounts paid by Company to prevent or remove liens, claims, debts, or encumbrances which are the responsibility of Seller or its subcontractors or suppliers.
11.0 TESTING, INSPECTION AND ACCEPTANCE
11.1 Company shall have the right to inspect the Products prior to final acceptance, and upon reasonable notice to Seller, observe testing of the Products during manufacture and/or before shipping of the Products and shall have the right to review any and all test records and reports relating to the Products that are maintained by Seller. Company also shall have the right to conduct its own testing or inspection of the Products. Seller shall give Company prompt notice of when testing by Seller is expected to be done and when the Products have reached the stage at which inspection or testing by Company may be carried out. Inspection and approval by Company at Seller’s plant does not preclude rejection of the Products by Company for defects upon discovery by subsequent inspection, or in any way limit or affect any of Seller’s warranties given with respect to the Products.
11.2 Company’s payment for the Products shall not constitute inspection and acceptance of Products and shall not operate as a waiver of Company’s right to reject the Products.
12.0 GUARANTEES AND WARRANTIES
12.1 Seller warrants that (1) it has good and merchantable title to the Products free and clear of any liens, restrictions, encumbrances, or security interest; (2) the Products shall conform to the description and applicable specifications; (3) the Products are consistent with any samples, models or designs provided by Seller and agreed by Company; and (4) the Services shall be performed in good faith, promptly, with due diligence, competence, and in accordance with applicable standard of care. Seller further warrants that the Products are of good and merchantable quality and suitable for its intended purpose, and free from any defects in design, materials, or workmanship. Unless otherwise provided in these Terms, the “Warranty Period” shall be one (1) year from the date of initial operation or usage but not to exceed eighteen (18) months from the date of acceptance by Company. The foregoing warranties are in addition to any express warranty or services guarantee given by Seller to Company or provided by Law.
12.2 If, during the Warranty Period, the Products or any portion thereof fail to conform to the requirements of these Terms, or are otherwise found to be defective, excluding normal wear and tear, then, such non-conforming or defective Products shall, at Company’s option, be promptly repaired or replaced at Seller’s sole cost and expense (“Warranty Work”). Seller shall bear the expense of making good all other property destroyed or damaged by its defective Product or as a result of the Warranty Work.
12.3 Within five (5) days after being notified in writing by Company that the Products fail to conform to the requirements of these Terms, Seller, with a workforce acceptable to Company, shall commence, and thereafter complete as rapidly as reasonably possible, repair or replacement of the non-conforming Products. Notwithstanding the foregoing, if in the sole discretion of Company, the non-conforming or defective Products create an immediate risk to person or property or the Products are critical to Company’s operations, Company may undertake the Warranty Work and charge Seller for all reasonable costs associated with the Warranty Work. In no event, will any work undertaken by Company pursuant to this Section limit, impair or void any performance or other guarantees or warranties provided by Seller.
12.4 Any Products repaired or replaced hereunder shall have the warranties herein provided for longer of (i) the remainder of the original warranty period or (ii) six (6) months from the date on which the repaired or replaced Products are accepted by Company.
12.5 The warranties set forth herein shall not affect or limit any of Company’s other rights or remedies provided by these Terms or applicable law and shall not be deemed to establish a period of limitation or prescription within which such other rights or remedies must be asserted.
12.6 This section shall survive the expiration, termination, or cancellation of these Terms.
13 INDEMNITY: Seller shall release, defend, indemnify, protect, and hold harmless Company, its parent, their subsidiaries and affiliates, and its contractors and subcontractors, as well as its and their employees, agents, officers, directors, invites, partners, and their assigns and successors in interest (“Indemnitees”) from and against any and all claims, liabilities, expenses (including reasonable attorney’s fees), losses, damages, demands, fines and causes of action caused by, arising out of, (i) Seller’s failure to comply with applicable laws and regulations; or (ii) the Products and/or the Services; or (iii) acts or omissions of Seller, that of its suppliers, subcontractors, agents, servants or employees, as well as any joint negligence or faults of the Indemnitees, regardless of the cause and whether or not such actions or omission occur jointly or concurrently. Seller’s release, defense, protection, hold harmless, and indemnity requirements, as set forth above, shall also extend to injuries sustained by Seller’s employees and shall not be limited by any applicable workers’ compensation law or similar statute. Seller’s obligations under this Section 13 shall be supported (but not limited) by liability insurance obtained for the benefit of Company and its Indemnitees as indemnitees with minimum limits and coverages not less than those required in Section 19, the cost of which insurance has been accounted for in the price of the Services. This section shall survive termination or cancellation of these Terms.
14 NONDISCLOSURE AND OWNERSHIP: All plans, drawings, designs, processes, and specification supplied by Company to Seller shall remain the sole and exclusive property of Company, and any information derived therefrom or otherwise communicated to Seller, shall be regarded by Seller as strictly confidential and shall not be disclosed to any third party without the prior written consent of Company.
15 INDEPENDENT CONTRACTOR: Seller agrees that it is an independent contractor with respect to the transactions contemplated by these Terms and that neither it nor its employees shall be considered employees of Company. Seller shall have no authority to make any statements, representations, or commitments of any kind, or to take any action binding upon Company.
16.0 INTELLECTUAL PROPERTY RIGHTS
16.1 Any drawings associated with Work which the Seller or its subcontractors may produce will be the property of Company and a copy of the drawing will be furnished to Company by the Seller. Seller shall not have any ownership rights in, and shall not distribute to any third parties (other than approved subcontractors as necessary to complete the Work), any drawings, plans or specifications provided by Company.
16.2 All inspection reports, test reports and material lists pertaining to a specific job shall be furnished to Company by the Seller upon request.
16.3 Any parts manufactured by the Seller will be marked to identify the part as having been manufactured by the Seller.
16.4 Seller shall not incorporate into the Work any processes, components or know-how that infringe on any patents or other intellectual property rights of any third parties. Seller shall indemnify, defend and hold Company and its affiliates and their respective officers, directors, agents, employees and representatives harmless from and against any and all infringement suits and all other suits, claims, demands and causes of action arising out of Seller’s or the Work’s infringement of any third party’s intellectual property rights; provided, however, that the foregoing indemnity shall not apply to the extent that such suits, claims, demands or causes of action arise solely out of Seller’s reliance upon drawings, plans, specifications or instructions supplied by Company.
17.0 NO THIRD-PARTY BENEFICIARIES: Nothing in these Terms, express or implied, are intended to or shall be construed to confer upon any person, firm, corporation, or legal entity, other than the parties hereto, any rights, remedies, or other benefits under or by reason of these Terms.
18.0 TAXES: Unless otherwise required by law, Seller has exclusive liability for sales, use, excise and other taxes, charges, or contributions with respect to or imposed on any Products supplied by Seller, including such taxes or contributions imposed on the wages, salaries or other payments to persons employed by Seller or its subcontractors in the performance of these Terms. Any applicable state and/or local sales or use taxes due on the Products are the duty of the Seller to collect and shall be separately stated on all invoices. Seller shall not collect or include any sales or use taxes on the Products or for which Company provides Seller with a properly completed exemption certificate. Seller shall pay all such taxes, charges, or contributions before delinquency or discount date and shall indemnify and hold Company harmless from any liability and expense by reason of Seller’s failure to pay such taxes, charges, or contributions.
19.0 INSURANCE
19.1 Seller shall procure and maintain with reputable insurers with A.M. Best Company’s rating of not less than “A-:VII”, policies of insurance written on an occurrence basis or on a claims made basis (in which event such insurance shall be maintained during the term of this Contract and for a period of two years following expiration or earlier termination of these Terms) or self-insurance acceptable to Company, with limits not less than those indicated for the respective items as follows:
19.1.1 Statutory Workers’ Compensation and Employer’s Liability Insurance and, if applicable, coverage under the Longshoremen and Harbor Workers’ Compensation Act, the Jones Act or other Maritime Employers’ Liability, complying with laws of each jurisdiction in which any work is to be performed or elsewhere as may be required. Employers’ Liability Insurance (and Maritime Employers’ Liability, if applicable) shall be provided with a limit not less than $2,000,000 each occurrence.
19.1.2 Commercial General Liability Insurance (by any combination of primary and excess or umbrella policies), including but not limited to all Premises and Operations, Blanket Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, Fire Legal Liability, Broad Form Property Damage Liability (including completed operations), and if applicable, Watercraft and Aircraft Liability, as well as coverage on all Seller’s mobile equipment (other than motor vehicles licensed for highway use) owned, hired or used in the performance of these Terms with limits not less than: $5,000,000 Bodily Injury & Property Damage combined each occurrence and aggregate.
19.1.3 If Seller and/or its carriers is making deliveries of the Products to one of Company’s facilities or providing services, Seller shall carry and maintain, or cause its carrier to carry and maintain, with an insurance company, Commercial Automobile Liability Insurance, including Contractual Liability, covering all motor vehicles licensed for highway use and employed in the performance of these Terms, with limits not less than:
$5,000,000 Bodily Injury, Personal Injury & Property Damage combined each occurrence and aggregate.
19.2 Seller shall provide to the Contract Specialist certificates of insurance acceptable to Company prior to commencement of performance hereunder. All insurance shall (i) provide that coverage shall not be suspended, voided, canceled, non-renewed, reduced in scope or limits except that after thirty (30) days prior written notice has been given to Company; and (ii) apply separately to each insured and additional insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer’s liability.
19.3 The Commercial General Liability and Commercial Automobile Liability policies shall be endorsed to (i) add, or shall have an existing blanket endorsement so as to add, Company as an additional insured; (ii) waive subrogation against Company; and shall provide that the coverage afforded to Company as an additional insured will be primary to any other coverage available to it, and that no act or omission of Company shall invalidate the coverage.
19.4 Failure of Seller to maintain the required insurance in full force and effect during the duration of these Terms and during any extensions agreed to by Seller and Company hereunder shall constitute a breach of these Terms, and Company shall have the right, in addition to any other rights, to immediately suspend, cancel and/or terminate these Terms without further costs to Company. Company shall have the further right to enforce the Terms as if the insurance had been property obtained.
19.5 The indemnity provisions set forth above and this section setting forth Seller’s insurance obligations are separate obligations of Company, and the enforceability or non-enforceability of the indemnity shall not prejudice Company’s rights as an additional insured under the insurance.
19.6 The insurance requirements set forth herein shall not in any way limit Company’s liability arising out of these Terms, or otherwise, and shall survive the termination or cancellation of these Terms.
19.7 The certificate holder must be shown exactly as follows: As noted on Purchase Order.
20.0 FORCE MAJEURE: These Terms is subject to modification or cancellation by Company in the event of fire, act of God, public enemy, earthquake, floods, strikes, labor troubles or any other cause beyond Company’s reasonable control.
21.0 DISPUTE RESOLUTION
21.1 If any claim or dispute arises involving these Terms, Seller shall proceed with the delivery of the Products, without interruption or delay, shall follow Company’s directions, and may bring a claim as provided in this Section. Seller’s failure to proceed with delivery of the Products as directed during the pendency of any claim or dispute shall constitute a material breach of these Terms. The parties agree that any dispute that cannot be resolved amicably shall first be submitted to mediation before a mutually acceptable mediator, prior to either party’s resorting to legal action. If the mediation has not concluded within sixty (60) days of the initial demand, in writing, for mediation, either party may then pursue litigation in accordance with this Section, without further recourse to mediation. If the parties are unable to agree upon a mediator within thirty (30) days after either notifies the other in writing of its intent to mediate, the mediator shall be appointed by the American Arbitration Association located in the closest proximity to where the Products are delivered. Each party will bear its out-of-pocket costs of the mediation; all other costs of the mediation, e.g., mediator fees and related charges, will be shared equally. If the parties are unable to agree upon a site, the mediation will be held at the location selected by the mediator. A request for mediation will immediately suspend the running of any statute of limitations, until the mediation is completed of abandoned by either party, upon written notice to the other.
21.2 All disputes not resolved by mediation shall be decided by litigation in the federal or state courts of the State where the products were shipped. BOTH PARTIES EXPRESSLY WAIVE THE RIGHT TO JURY TRIAL IN ANY LEGAL PROCEEDING IN ANY WAY ARISING OUT OF OR RELATED TO THESE TERMS, AND EXPRESSLY SUBMIT TO THE PERSONAL JURISDICTION OF THE COURTS NAMED IN THIS SECTION.
22.0 SET-OFF: Seller grants Company, without waiver or limitation of any rights or remedies of Company, the right to set-off and apply any amounts owed by Company to Seller or Seller’s successors or assigns against any amounts owed by Seller or Seller’s successors or assigns to Company or any collateral held by Company as security for any indebtedness owed by Seller to Company.
23.0 APPLICABLE LAW AND JURISDICTION: These Terms will be construed in accordance with and governed by the law of the state where the Products are delivered or the Services are performed. Jurisdiction will lie in the state where the Terminal is located for which the WORK is being performed. In the event of legal action arising as a result of these Terms, the prevailing party shall be entitled to reasonable attorneys’ fees, expenses, and costs.
24.0 NOTICES: All notices required or permitted under these Terms shall be in writing and shall be delivered by hand, by nationally recognized overnight courier or by registered or certified mail, to the address set forth on the cover page of these Terms.
25.0 TERMINATION: These Terms may be terminated by either party with or without cause giving the other party a thirty (30) day written notice of termination.
26.0 PRIMACY: These Terms govern all Purchase Orders issued by Company to Seller for the purchase of Goods unless a separate written master agreement executed by both parties expressly addresses the subject matter hereof, in which case the terms of such master agreement shall control and supersede these Terms to the extent of any conflict. In the absence of such a master agreement, these Terms shall control and govern over any conflicting or inconsistent terms contained in any other document or communication between the parties, including any Seller-issued order acknowledgment, invoice, confirmation, proposal, quotation, or rate schedule. Any terms or conditions proposed by Seller that are additional to or inconsistent with these Terms are hereby expressly rejected and shall have no force or effect, regardless of form, date, or alleged method of incorporation, and regardless of any action or inaction by IMTT with respect thereto.
27.0 SEVERABILITY OF PROVISIONS: The invalidity, illegality, and unenforceability of any provision(s) of these Terms shall in no way affect or impair the validity, legality, and enforceability of the remaining provisions hereof.
28.0 CAPTIONS: Captions used in these Terms are not part of these Terms and are for convenience of reference only and shall not affect the meaning or construction of any of its provisions.
29.0 AUDIT: If Seller’s compensation under these Terms is determined in whole or in part on a reimbursement of costs basis, the costs to be reimbursed shall be only those reasonably necessary to provide the Products in an efficient manner in accordance with the time schedule required. Seller agrees to retain all records and accounts related to costs and expenses invoiced to Company under these Terms for a period of at least three (3) years from the completion and/or shipment date of any Product. Such records and accounts shall itemize the names of employees, hours worked, services performed, materials used, and any other costs or expenses. Such audit may also cover Seller’s procedures and controls with respect to the costs to be reimbursed. At any reasonable time, Seller shall permit Company to review and audit all records and accounts related to costs and expenses invoiced to Company which pertain to the non-fixed price transactions under these Terms. Company’s signature on timecards or other documents evidencing work performed, products shipped, or materials purchased shall not preclude Company from receiving an adjustment to amounts paid to Seller based on an audit or other review by or on behalf of Company.
30.0 CONFLICT OF INTEREST AND ETHICS: IMTT maintains a Code of Business Conduct and Ethics that can be found on Company’s website and includes a phone number to call in the event of any violation of the Code. All employees are required to comply with the Code including in all their activities with customers, vendors, contractors and other third parties. We expect all third parties doing business with Company to do so in a responsible and ethical manner and they risk Company terminating any relationship if they do not adhere to such standards. Every contractor providing services on Company property is also required to adhere to Company’s Code of Conduct.
ADDITIONAL TERMS AND CONDITIONS APPLICABLE IF SELLER PERFORMS SERVICES ON COMPANY’S SITE
31.0 SERVICES
31.1 If requested by Company, Seller shall provide field support, oversight, and other necessary assistance during the installation of the Products to ensure that the Products are installed in a good and workmanlike manner, in accordance with applicable contract documents and in accordance with any requirements of Seller. It is understood that any field support shall not, while performing his/her duties with respect to the Products covered by the Terms be deemed Company’s agent, servant or employee, and Seller assumes full responsibility for all acts and omissions of such party.
31.2 Seller shall ensure that Seller and its employees, subcontractors and agents comply with Company’s safety and security standards, to the extent applicable, and, if entering property owned or controlled by Company for any purpose, shall observe all applicable safety, health, and environmental laws, including without limitation such other policies such as Company’s site-specific standards. Company may at any time, in its sole discretion, modify or replace Company’s safety and security standards and/or other site-specific standards, or otherwise furnish or change health and safety requirements, by notification to Seller either orally or in writing, complying with any other provision regarding giving notice. Upon Company’s request, Seller shall promptly remove from Company’s work-site any person under the control of Seller who violates any of the aforesaid laws, regulations, or Seller’s policies or who may cause or threaten to cause a breach of the peace or who is otherwise objectionable to Company.
