GUNDERSON PURCHASE ORDER TERMS AND CONDITIONS
The parties to this agreement are the addressee on Gunderson’s Purchase Order as (“Seller”) and Gunderson Marine, LLC., its parent, subsidiary, or affiliated companies, and their shareholders, officers, directors, agents, and employees (“Buyer”).
1. ACCEPTANCE: This order is Buyer's offer to purchase the goods and/or services described on Purchase Order (“Order”) from Seller. Buyer's placement of this Order with Seller is expressly conditioned upon Seller's acceptance of all of these terms and conditions, and any additional terms and conditions contained on, referenced in, or attached to this Order. Gunderson’s Purchase Order Terms and Conditions prevail over and supersede all Seller’s terms, whether or not transmitted to Gunderson, contained in Seller’s communications, order confirmations, delivery or other receipts, or invoices, or posted on Seller’s website or elsewhere.
2. IDENTIFICATION: All invoices, packing lists, packages, shipping notices, instruction, manuals and other written documents affecting this Order must contain the applicable Order number. Packing lists must be enclosed in or affixed to each box or package shipped pursuant to this Order, indicating the contents therein. Invoices will not be processed for payment until all items invoiced are received.
3. SHIPPING INSTRUCTIONS:
3.1. All goods are to be shipped and delivered in accordance with the Order box labelled “Delivery Terms”.
3.2. Seller is responsible for the payment of all charges for handling, packaging, wrapping, bags, containers, reels and related matters unless Buyer has assumed an express obligation therefore by notation on Order.3.3 Seller must label containers of all goods known to constitute a toxic, health, poison, fire, explosive or other hazard in accordance with all labeling laws (federal, state and local) of the locations from which, to which, and through which said goods are shipped.
4. PAYMENT:
4.1. Seller will issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with this Order. Unless otherwise specified in the Purchase Order, all amounts payable under this Order will be paid in United States Dollars.
4.2. Unless Seller instructs otherwise in writing, Buyer will remit payment to Seller by wire transfer to Seller’s designated bank account or a check delivered to Seller’s designated address or representative. Seller agrees not to deliver goods on a sight draft basis.
5. SET OFF: Without prejudice to any other right or remedy it may have, Buyer has the right to set off at any time any amount Seller or any of Seller’s affiliates owes to Buyer against any amount payable by Buyer to Seller.
6. ASSIGNMENT AND SUBCONTRACTING: Seller must not assign or subcontract any of its obligations under this Order without Buyer’s prior written consent.
7. LIENS, CLAIMS AND ENCUMBRANCES: Seller warrants and represents that all the goods will, when delivered to Buyer, be free and clear of all liens, claims or encumbrances of every kind.
8. REJECTION: All goods purchased hereunder are subject to Buyer's inspection and approval.
9. TERMINATION FOR CONVENIENCE: Buyer may terminate this order in whole or part for its convenience, by giving notice to Seller at any time. If terminated for Buyer's convenience, Seller will stop work immediately and Buyer is responsible for the actual costs it has incurred in the performance of the Order up to the date of Termination.
10. DEFAULT: Buyer may, by written notice of default to Seller, cancel the whole or any part of this order or exercise any other remedy provided buyers of goods by law or in equity including any remedy under the Uniform Commercial Code (RCW 62A), in any of the following circumstances:
10.1. Time is of the essence. If Seller fails to make delivery of goods or to perform the services within the time specified herein or any extension thereof;
10.2. If in Buyer's good faith judgment, the Seller fails to perform any of the other provisions of this order or fails to make progress as to endanger performance of this order in accordance with its terms and does not cure such failure within a period of ten (10) days, or such longer period as Buyer authorizes in writing, after receipt of notice from Buyer specifying such failure;
10.3. Seller is in material breach of any of the terms or conditions of this order; or,
10.4. If Seller becomes insolvent or makes an assignment for the benefit of creditors, or if 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 is instituted by or against Seller and such proceeding is not dismissed or cured within sixty (60) days.
11. WARRANTIES: Seller warrants goods supplied and work or services performed under this order conform to specifications herein and are merchantable and fit for the particular purposes for which the goods are ordinarily employed.
11.1. Seller further warrants to the Buyer and to any third party ultimately using any item whether such third party is a customer of Buyer or not, that all items delivered under this order will be free from defects in material and workmanship and will conform to applicable specifications, drawings, samples and descriptions. If Seller is responsible for design of items, Seller warrants that all items delivered under this order will be suitable for use and meet Buyer’s design requirements and specifications. Buyer's written approval of designs furnished by Seller does not relieve Seller of its obligations under this warranty.
11.2. Seller warrants that the goods supplied hereunder were manufactured in compliance with the provisions of the Fair Labor Standards Act of 1938, as amended, and all other applicable federal, state and local laws, regulations, rules and ordinances and agrees, upon request, to furnish buyer a certificate to such effect in such form as buyer may from time to time require.
11.3. Unless specified in the body of the Order, SELLER'S WARRANTY EXTENDS FOR A PERIOD OF 12 MONTHS AFTER THE ITEM IS DELIVERED AND ACCEPTED BY BUYER AND APPLIED TO ITS INTENDED USE. Where Buyer incorporates that item into a product of Buyer to be delivered to its customer, Seller's obligation under this clause will be for the benefit of Buyer's customer and will extend to one year after application of the item to its intended use.
11.4. The warranties represented and covenants of parties hereto survive the delivery of the goods or completion of the work or services provided and are fully enforceable thereafter. Seller's warranty hereunder is part consideration for this order; any payment by Buyer hereunder is conditional upon this warranty remaining in effect.
12. QUALITY STANDARDS: If a special brand is listed in this order, the goods being purchased must meet the standards for quality, performance, and use of such brand. If Seller is willing to supply a product equivalent to the designated special brand, it must first provide Buyer with descriptive literature identifying its brand, including the quality, performance and specifications therefore.
13. INSPECTION AND QUALITY CONTROL:
13.1. All items furnished under this order by Seller to Buyer are subject to inspection and tests by Buyer or representatives of a third party purchasing Buyer's product in which items will be used ("User's Representative"). To the extent practicable, inspection may be made at all times and places, including the period of manufacture and prior to acceptance.
13.2. If inspections or tests are made by Buyer or User's Representative on the Seller’s, or Seller’s supplier’s or subcontractor’s premises, Seller without additional charge will provide access for the inspectors in the performance of their duties.
13.3. Seller must provide and maintain inspection and quality control systems acceptable to Buyer covering the items furnished hereunder. Records of all inspection work by both Buyer and Seller must be kept intact and made available upon request to the other party during the performance of this order and for six years following delivery under this order.
13.4. Seller will provide Buyer appropriate material certifications as described on the Order, including but not limited to, American Bureau of Shipping Inspection Certificates, material, physical and/or chemical analysis certifications, OSHA (and state equivalent) Material Safety Data Sheets, and U.S. Coast Guard acceptance certifications.
14. INFRINGEMENTS: Seller warrants that Buyer's purchase, installation, and/or use of the goods covered hereby will not result in any claim of infringement, or actual infringement of any patent, trademark, copyright, franchise or other intellectual property right. Seller will indemnify and hold Buyer harmless from and against all claims, losses, expenses, damages, causes of action and liabilities of every kind and nature, including without limitation reasonable attorneys' fees and costs (without waiver of Sellers obligation to indemnify Buyer hereunder), arising from or out of any breach of the foregoing warranty.
15. KNOCK FOR KNOCK:
15.1. To the fullest extent permitted by law, Seller must indemnify, save harmless, and defend Buyer from and against any legal proceedings, claims, demands, damages, costs, and expenses of whatsoever kind or character (including reasonable attorney’s fees and expenses) arising out of any injury (including death) to Seller’s personnel or contractors or damage to Seller’s or Seller’s contractor’s property in any manner, caused or occasioned in any proportion or degree by any defect in provided goods or services or by any act, omission, negligence, or default of any person, firm, corporation, or other entity (including Seller, Buyer, or anyone acting on their respective behalf), in connection with or incident to this Order, even if the same is, or is alleged to be, due to the sole active negligence of Buyer or anyone acting on its behalf.
15.2. To the fullest extent permitted by law, Buyer must indemnify, save harmless, and defend Seller from and against any legal proceedings, claims, demands, damages, costs, and expenses of whatsoever kind or character (including reasonable attorney’s fees and expenses) arising out of any injury (including death) to Buyer’s personnel or contractors or damage to Buyer’s property in any manner, caused or occasioned by any act, omission, negligence, or default of any person, firm, corporation, or other entity (including Seller, Buyer, or anyone acting on their respective behalf), in connection with or incident to this Order, even if the same is, or is alleged to be, due to the sole active negligence of Seller or anyone acting on its behalf.
15.3. To the extent necessary to give effect to these mutual obligations and indemnities, both Buyer and Seller hereby waive immunities and exclusive remedy provisions under applicable worker’s compensation laws.
16. INSURANCE: While fulfilling this Order, Seller must, at its sole cost and expense (including the cost of all deductibles), procure and maintain the following insurance:
16.1. Marine General Liability or 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 $1,000,000 per occurrence.
16.2. As applicable:
(a) If Seller is bringing a vehicle on to Buyer’s premises; Automobile liability insurance, covering Seller’s owned, rented, leased, and hired vehicles, with limits of liability not less than $1,000,000 per occurrence.
(b) If Seller’s personnel will enter Buyer’s facilities, Workers’ compensation insurance as the law requires for all of Seller’s employees, agents, and subcontractors, and employer’s liability insurance in an amount not less than $1,000,000 per occurrence. Such insurance must provide coverage in the location in which Seller performs the work and in Seller’s domicile. If there is any exposure to injury or illness under the U.S. Longshore and Harbor Workers’ Compensation Act, the Jones Act, or other statues applicable to maritime employees, Seller must maintain insurance for such injuries or illnesses, and provide evidence of such insurance.
(c) If consulting services are being performed – professional liability/errors & omissions liability insurance with limits not less than $1,000,000 per occurrence.
(d) For delivery of fuel or other hazardous products, or waste disposal operations Seller performs: 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 that federal, state, or local regulatory authorities require.
16.3. At Buyer’s written request, certain of Seller’s insurance policies must be endorsed to name Buyer, its parent, subsidiary, or affiliated companies and their shareholders, officers, directors, agents, and employees (and the vessel, if applicable) as additional insureds (except as to Workers Compensation) with a waiver of subrogation.
16.4. The amount or scope of insurance required does not place any limitation on the liability Seller assumes. Buyer will benefit from any higher insurance limits Seller may maintain. Seller must require any subcontractor used in providing services to maintain insurance of the types and amounts this Order requires of Seller. Policies of Seller are primary to any insurance Buyer carries, and Seller must amend any “other insurance” clauses under its policies accordingly. Should Seller fail to procure or maintain any of the required insurance or by any act or omission invalidate any of the required insurance, Seller must pay to Buyer all losses and indemnify Buyer against all claims and demands that insurance otherwise would have covered. Insolvency, bankruptcy or failure of any insurance company to pay all claims accruing does not relieve Seller of any of its obligations. Seller’s insurance must be written with insurers carrying no less than an “A-” rating from A.M. Best’s. Seller must provide Buyer with certificates of insurance on request. Commencement of services without request for or without providing certificates of insurance does not constitute a waiver of Seller’s obligation to maintain required insurance. Certificate of insurance and additional insured endorsements evidencing coverage and limits of insurance must be sent to Buyer by electronic transmission or certified mail (to: Gunderson Marine, LLC., Attn: Contracts Administrator, 4350 NW Front Ave., Portland OR 97210).
17. SERVICE OR INSTALLATION OF WORK: In the event this Order requires the performance of work or installation of goods by Seller upon any property or project of Buyer, the following conditions also apply:
17.1. Seller must take precautions to protect all property and persons from damage or injury arising out of its work and must comply with all fire, safety and other applicable regulations prescribed by any governmental agency and by Buyer and/or owner of the project upon which work is being performed, and Seller is responsible for the observance thereof by all sub-contractors, employees, agents and representatives of Seller and its sub-contractors.
17.2. Seller will keep the premises and work free and clear of all mechanics and materialmen's liens or claims. Seller must promptly pay for all labor and material and if Seller fails to do so, Buyer, 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 Buyer may withhold any payment to Seller until receiving such affidavits, waivers and releases with respect to claims for labor and materials as Buyer may require.
17.3. Seller is an independent contractor and not the agent or representative of Buyer.
17.4. Seller will perform its work in accordance with the schedules and work programs established by Buyer and will fully cooperate with Buyer 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, Buyer may direct the necessary coordination.
17.5. Seller will carry on its work so that the premises are at all times clean, orderly and free from debris and upon completion will 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.
17.6. Buyer has the right to exclude or eject personnel from Buyer's premises or vessels who do not abide by Buyer’s Work and Safety rules and procedures.
17.7. Seller is solely liable for its employees, agents, contractors or sub-contracts and their actions while on Buyer's premises and the Seller indemnifies and will protect Buyer from all losses, claims, expenses, damages, arising from or out of the presence or activity of Seller's employees while at Buyer's premises. This indemnification is to clarify paragraph 22.
18. ADVERTISING: Seller or any one acting on Seller's behalf must not make any advertising or publicity matter having or containing any reference to Buyer or any of its staff members without written consent of Buyer.
19. DISCLOSURE OF INFORMATION: All data and information not already in the public domain developed or disclosed during the life of this order will be the property of the Buyer and will be classified as secret and confidential by the Seller. Seller will keep confidential all such data and information until it comes into the public domain or until Buyer's Purchasing & Procurement Manager consents in writing to disclosure.
20. ATTORNEY'S FEES: In any suit or action brought to enforce any term, condition or covenant herein, or to recover damages arising from any breach of this contract, the losing party will pay to the prevailing party reasonable attorneys' fees and all other costs and expenses which may be incurred by the prevailing party in any such suit or action and in any reviews thereof and appeals therefrom.
21. LAW: This Order is governed by and construed in accordance with the federal maritime law of the United States, or if there is no applicable maritime law, the laws of the State of Oregon. Seller submits to jurisdiction of state and federal courts located in Portland, Oregon.
22. SEVERABILITY: If a court or other competent authority holds any provision of these terms and conditions to be invalid or unenforceable in whole or in part, the other provisions of these terms and conditions and the remainder of the provision in question will remain valid.
23. ENTIRE AGREEMENT: This Order and any attachments constitute the entire agreement between the parties with respect to the services. Any proposals or terms additional to or different from those in this Order howsoever transmitted, conveyed, communicated, or posted are not binding.
24. ANTI-DISCRIMINATION POLICY: Buyer is a federal contractor and has an Equal Employment Opportunity Policy and an Affirmative Action Program. All Buyer’s contractors and subcontractors, including suppliers and vendors, must abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. Seller must comply with Buyer’s Anti-Discrimination Policy posted on Buyer’s website, a copy of which will be provided upon Seller’s request.