GUNDERSON MARINE & IRON PURCHASE ORDER TERMS AND CONDITIONS
1. Applicability. These Purchase Order Terms and Conditions (these "Terms") are the only terms which govern the purchase of the goods ("Goods") and services ("Services") by Gunderson Marine LLC, its parents, affiliates, and subsidiaries ("Buyer") from the seller named on the Purchase Order ("Seller"). Except only to the extent a separate written contract signed by authorized representatives of both parties ("Other Contract") is in existence and applicable to the sale of the Goods and Services described in a purchase order issued by Buyer, in which case the terms and conditions of the Other Contract shall prevail to the extent of any conflict and are deemed incorporated into the purchase order issued by Buyer (the "Purchase Order"), these Terms and the Purchase Order (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Seller's general terms and conditions regardless of whether or when Seller has submitted its sales confirmation or such terms. This Agreement expressly limits Seller's acceptance to the terms of this Agreement. Fulfillment of or other performance under a Purchase Order constitutes acceptance of these Terms.
2. Delivery of Goods and Performance of Services.
(a) Seller shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties (the "Delivery Date"). If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate this Agreement immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller's failure to deliver the Goods on the Delivery Date. Buyer has the right to return any Goods delivered prior to the Delivery Date at Seller's expense and Seller shall redeliver such Goods on the Delivery Date.
(b) Seller shall deliver all Goods to the address specified in the Purchase Order (the "Delivery Point") during Buyer's normal business hours or as otherwise instructed by Buyer. Seller shall pack all Goods for shipment according to Buyer's instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Packing lists must be enclosed in or affixed to each container, box or package shipped pursuant to the Purchase Order, accurately indicating the contents therein. Seller is solely responsible for the proper packaging, stuffing, labeling and placarding of any shipment and for otherwise ensuring that the Goods are prepared for shipment in compliance with all laws, regulations or ordinances in effect or otherwise applicable at or to the locations from, to, and through which the Goods are shipped, together with any rules, terms, published tariffs or other conditions imposed by any carrier. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material and any return of such packaging material shall be made at Seller's risk of loss and expense.
(c) Seller shall provide the Services to Buyer as described and in accordance with the dates or schedule set forth on the purchase order and in accordance with the terms and conditions set forth in these Terms.
(d) Seller acknowledges that time is of the essence with respect to Seller's obligations hereunder and the timely delivery of the Goods and Services, including all performance dates, timetables, project milestones and other requirements in this Agreement.
3. Quantity. If Seller delivers more or less than the quantity of Goods ordered, Buyer may reject any partial delivery or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller's sole risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.
4. Shipping Terms. All Goods must be shipped and delivered in accordance with the terms set forth on the face of the Purchase Order in the box labeled “Delivery Terms.” If no shipping terms are specified or the Delivery Point is not identified in the Purchase Order, all Goods shall be shipped and delivered F.O.B. and the Delivery Point shall be Buyer’s facility in Portland, Oregon. The Purchase Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, instructions, manuals, correspondence and any other documents pertaining to the Purchase Order.
5. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point.
6. Quality, Inspection and Rejection of Nonconforming Goods. All Goods furnished by Seller under the Agreement are subject to inspection and testing by Buyer or/or representatives of Buyer’s customer, client, and any intended third-party user or owner of Buyer’s products (collectively, "User Representatives").
(a) Seller must provide and maintain inspection and quality control systems acceptable to Buyer covering all Goods furnished under this Agreement. Records of any inspections, testing, or other information relating to the quality or compliance of the Goods with the applicable specifications shall be maintained by Seller for not less than six (6) years following the Delivery Date and shall be made available to Buyer upon request.
(b) On or before the Delivery Date, Seller will provide Buyer material certifications and any additional compliance information or documentation related to the Goods as described on the Order or as may be requested by Buyer or User Representatives, 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, U.S. Coast Guard acceptance certifications, country of origin certifications, full material declarations, or other similar information or documentation (collectively, "Quality Documentation")
(c) Buyer and User Representatives have the right to inspect the Goods prior to, on, and after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it or any User Representatives determine the Goods are nonconforming or defective or that Seller has not furnished the required Quality Documentation. If inspections or tests are made by Buyer or User Representatives at Seller’s or Seller’s suppliers or subcontractors facilities, Seller, without additional charge, will provide reasonable access for Buyer and User Representatives.
(d) If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind this Agreement in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, within the shorter of five (5) days or such longer time period as may be specified by Buyer in Buyer’s sole discretion, replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with substantially equivalent goods (or other goods as may be acceptable to Buyer if substantially equivalent goods are not then immediately and reasonable available, as determined by Buyer in Buyer’s sole discretion) from a third party and charge Seller the cost thereof and terminate this Agreement for cause pursuant to Section 17. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller's obligations under the Agreement, and Buyer and User Representatives shall have the right to conduct further inspections after Seller has carried out its remedial actions.
7. Price. The price of the Goods and Services is the price stated in the Purchase Order (the "Price"). If no price is included in the Purchase Order, the Price shall be the price set out in Seller's published price list in force as of the date of the Purchase Order. Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs to the Delivery Point, insurance, customs duties, fees, and applicable taxes (including, but not limited to, all sales, use or excise taxes). No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer which Buyer may grant or withhold in Buyer’s sole unfettered discretion.
8. Payment Terms. Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with these Terms. Buyer will pay all properly invoiced, undisputed amounts due to Seller within thirty (30) days after Buyer's receipt of such invoice. Unless otherwise explicitly stated on the face of the Purchase Order, all payments hereunder must be in US dollars and made by wire transfer to Seller’s designated bank account or check delivered to Seller’s designated address. In no event shall Seller deliver goods on a sight draft basis or other basis requiring immediate payment on delivery as a condition of releasing the Goods. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller. In the event of a payment dispute, Buyer shall deliver a written statement to Seller no later than thirty (30) days after the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not timely disputed by Buyer are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this Section 8. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under this Agreement notwithstanding any such dispute.
9. Seller's Obligations Regarding Services. Seller shall:
(a) before the date on which the Services are to start, obtain, and at all times during the term of this Agreement, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services;
(b) comply with all rules, regulations and policies of Buyer, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Buyer to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures;
(c) maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Seller in providing the Services in such form as Buyer shall approve. This shall include, to the extent required under any contract between Buyer and its clients or customers, certified payroll records. During the term of this Agreement and for a period of six (6) years thereafter, upon Buyer's written request, Seller shall allow Buyer to inspect and make copies of such records and interview Seller personnel in connection with the provision of the Services;
(d) obtain Buyer's written consent, which shall not be unreasonably withheld or delayed, prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Seller, other than Seller's employees, to provide any Services to Buyer (each such approved subcontractor or other third party, a "Permitted Subcontractor"). Buyer's approval shall not relieve Seller of its obligations under the Agreement, and Seller shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Seller's own employees. Nothing contained in this Agreement shall create any contractual relationship between Buyer and any Seller subcontractor or supplier;
(e) require each Permitted Subcontractor to be bound in writing by the confidentiality provisions of this Agreement, and, upon Buyer's written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to Buyer;
(f) ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Seller, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services;
(g) ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by the Buyer;
(h) keep and maintain any Buyer equipment in its possession in good working order and shall not dispose of or use such equipment other than in accordance with the Buyer's written instructions or authorization;
(i) 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; and
(j) In the event the Purchase Order quires the performance of Services or installation of Goods by Seller upon any property or project of Buyer, then Seller shall: (A) take adequate precautions and implement best management practices to protect all property, persons, and the environment from damage or injury arising out of its work or the Services; (B) keep the premises and any Goods or other property of Buyer or Buyer’s customers free and clear of all mechanics and materialmen's liens or claims; (C) 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 practice; (D) carry on Seller’s 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.
10. Intellectual Property.
(a) Services. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product and other materials that are delivered to Buyer under this Agreement or prepared by or on behalf of Seller in the course of performing the Services and necessary (collectively, the "Deliverables") shall be owned exclusively by Buyer, except to the extent such Intellectual Property Rights were independently developed or owned by Seller prior to performance of the Services and were developed without reliance on any Buyer furnished data or information ("Seller IP"). Seller shall remain the sole owner of all Seller IP, however, Seller shall be deemed to have granted to Buyer an irrevocable non-exclusive, fully paid up, royalty free, assignable, sublicensable, and worldwide license to use and exploit all Seller IP incorporated into any Deliverables provided to Buyer in connection with the Services. Seller agrees, and shall cause its employees (collectively, "Seller Personnel") to agree, that with respect to any Deliverables that may qualify as "work made for hire" as defined in 17 U.S.C. § 101, such Deliverables are hereby deemed a "work made for hire" for Buyer. To the extent that any of the Deliverables do not constitute a "work made for hire," Seller hereby irrevocably assigns, and shall cause the Seller Personnel to irrevocably assign to Buyer, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein. Seller shall cause Seller Personnel to irrevocably waive, to the extent permitted by applicable law, any and all claims such Seller Personnel may now or hereafter have in any jurisdiction to so-called "moral rights" or rights of droit moral with respect to the Deliverables.
(b) Goods. With respect to commercially available off-the-shelf Goods that are not specially manufactured by Seller for or on behalf of Buyer and do not incorporate or rely on any Buyer Intellectual Property Rights ("COTS"), all Intellectual Property Rights in the COTS will be remain exclusively owned by Seller, however Seller shall be deemed to have granted Buyer a non-exclusive, fully paid up and royalty-free, worldwide and assignable right and license to use Seller's Intellectual Property Rights to the extent reasonably required to fully utilize the COTS generally or otherwise use them for Buyer’s intended purpose.
(c) Buyer Materials. In connection with Seller’s performance of the Services and/or for any Goods other than COTS that are specially designed or manufactured by Seller for Buyer in accordance with or that otherwise incorporate Buyer furnished data, designs, know-how, processes, trade secrets or specifications or that otherwise are derived from any of Buyer’s copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, or other confidential information ("Buyer Materials"), Buyer shall remain the sole owner of the Buyer Materials and nothing in this Agreement shall be deemed to have transferred any right, title, or interest in the Buyer Materials to Seller except for a limited non-assignable and non-transferable license to the extent required for Seller to furnish the applicable Services or Goods to Buyer in accordance with this Agreement. All other rights in and to the Buyer Materials are expressly reserved by Customer.
11. Change Orders. Buyer may at any time, by written instructions issued to Seller (each a "Change Order"), order changes to the Goods or Services, including changes to (a) the specifications, drawings, and data for Goods or Services; (b) quantity; (c) methods of shipment or packaging; (d) Delivery Date; (e) Delivery Point; and (f) any other matters affecting this Order. Unless Seller notifies Buyer that a change set forth in a Change Order will result in an increase in cost by submitting a written cost proposal or written notice to Buyer that the change is otherwise is impractical to deliver by the Delivery Date within two (2) business days following receipt of the Change Order, Seller will be deemed to have waived any right to an adjustment in price or Delivery Date. If Buyer accepts such cost proposal, Seller shall proceed with the changed services subject to the cost proposal and the terms and conditions of this Agreement. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in the Seller's compensation or the performance deadlines under this Agreement.
12. Warranties.
(a) Seller warrants to Buyer that all Goods sold and Services delivered to Buyer under this Agreement will be transferred with good and merchantable title, free and clear of all liens, security interests or other encumbrances;
(b) Seller warrants to Buyer that for the longer of: (A) a period of 12 months from Buyer’s acceptance; (B) where Buyer incorporates the Goods into a product of Buyer to be delivered to Buyer’s customer, 12 months from Buyer’s delivery of its product; (C) any manufacturer warranty generally offered by Seller to purchasers of the Goods; all Goods will: (i) be free from any defects in workmanship, material and design; (ii) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer; (iii) be fit for their intended purpose and operate as intended; and (iv) be merchantable.
(c) Seller warrants and covenants to deliver to Buyer Goods and Services that do not infringe or misappropriate any third party's patent or other intellectual property rights and will not infringe or otherwise misappropriate any such third-party rights when used by Buyer;
(d) Seller warrants to Buyer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with all industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement; and
(e) Seller warrants that the Goods have been manufactured and all Services have been provided in compliance with all federal, state, and local laws, rules, regulations and ordinances directly applicable or otherwise made applicable by contract to Seller or Buyer, including but not limited to laws, rules, regulations and ordinances related to labor, health and safety, and the environment.
(f) The warranties set forth in this Section 12 survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer and will be construed as cumulative and in addition to any other express or implied warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer's discovery of the noncompliance of the Goods or Services with the foregoing warranties. If Buyer gives Seller notice of noncompliance pursuant to this Section, Seller shall, at its own cost and expense, within thirty (30) days (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer, and, if applicable, (ii) correct or re-perform the applicable Services.
13. General Indemnification. To the maximum extent permitted under applicable law, Seller shall defend, indemnify and hold harmless Buyer and Buyer's parent company, their respective, parent companies, subsidiaries, affiliates, successors or assigns along with each of their respective directors, officers, shareholders and employees, agents, and customers (collectively, "Indemnitees") against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") to the extent arising out of, related to, or occurring in connection with the Goods and Services purchased from Seller, Seller's negligence, willful misconduct or breach of the Terms. Seller shall not enter into any settlement without Buyer's prior written consent. If any portion of this Section is for any reason held invalid or unenforceable by judicial decision or legislative amendment, the valid and enforceable provisions of this Section will continue to be given effect and shall be construed so as to provide the broadest indemnification permitted by law.
14. Intellectual Property Indemnification. Seller shall, at its expense, defend, indemnify and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer's or Indemnitee's use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Buyer's or Indemnitee's prior written consent.
15. Insurance. Seller shall, at its own expense (including the cost of all deductibles and any self-insured retention), maintain in full force and effect with financially sound and reputable insurers (carrying no less than an “A-” rating from A.M. Best’s) the following coverages:
(a) 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, with minimum limits of $1,000,000 per occurrence and $2,000,000 in the aggregate.
(b) Workers’ compensation insurance with at least the minimum coverages and limits required by law for all of Seller’s and any Permitted Subcontractors’ respective employees, agents, performing the Services, 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 Services and in all jurisdictions where Seller regularly operates. If the Services or delivery of the Goods involve work that may result in employees being covered by the U.S. Longshore and Harbor Workers’ Compensation Act, the Jones Act, or other statues applicable to maritime employees, then the employer’s liability policy must be appropriately endorsed to provide coverage for claims under such laws.
(c) As applicable:
(i) If Services involve or otherwise entail Seller bringing a vehicle onto Customer’s premises, Automobile liability insurance, covering Seller’s owned, rented, leased and hired vehicles, with limits of liability of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate;
(ii) If the Services involve or otherwise entail consulting or professional services, professional liability/errors & omissions liability insurance with limits not less than $1,000,000 per occurrence; and/or
(iii) If the Goods contain any hazardous substances or the Services involve or otherwise entail the handling, delivery, or removal of any hazardous substances or waste disposal, 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.
(d) Each policy of insurance required to be obtained and maintained by Seller under this Agreement must include a waiver of subrogation in favor of Buyer and each of the Indemnitees, and (except for workers compensation and, if required, professional liability) must be endorsed to name Buyer and each of the Indemnitees as additional insureds. The minimum coverages required under this Agreement shall not be interpreted or otherwise serve to limit Seller’s liability, and Seller’s shall be solely responsible for determining whether additional coverages or higher limits are appropriate for Seller’s business and risk. To the extent Seller obtains or maintains coverages or limits in excess of the minimum requirements set forth in this Agreement, Buyer and each of the Indemnitees shall be named as an additional insured with respect to the full limits actually maintained by Seller (including any excess layers).
(e) Seller shall, on Buyer’s request, provide certificates of insurance evidencing coverages and limits required by this Agreement. Buyer’s failure to request certificates of insurance or acceptance of certificates of insurance that do not show required coverages shall not be deemed a waiver of Seller’s obligations to obtain and maintain the coverages and minimum limits required by this Agreement.
16. Compliance with Law. Seller shall comply with all applicable laws, regulations and ordinances. Seller shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Seller shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Seller. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Buyer may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties or tariffs on the Goods.
17. Termination.
(a) Buyer may terminate this Agreement, in whole or in part, for its convenience and without liability to Seller, by giving Seller written notice. If terminated for Buyer’s convenience, Seller will stop all work immediately (or in the case of a partial termination, stop all work on that portion so terminated). In the event Buyer terminates for convenience, Seller’s sole and exclusive remedy shall be payment for the Goods received and accepted prior to termination, the Services accepted by Buyer prior to termination, and recovery of Seller’s actual documented costs incurred with respect to any Services partially performed or Goods partially completed prior to the date of termination that Seller cannot, through commercially reasonable efforts, repurpose, resell or otherwise beneficially use in Seller’s ordinary course of business. At Buyer’s option, Seller shall deliver any partially completed Services and Goods for which Buyer has paid to Buyer.
(b) In addition to any remedies that may be provided under these Terms, Buyer may terminate this Agreement for cause and with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods or the seller's delivery of the Services, if Seller has not performed or complied with any of these Terms, in whole or in part (a "Default"). In addition, a Default shall be deemed to have occurred if the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. If Buyer terminates the Agreement for Seller’s Default, Seller's sole and exclusive remedy shall be payment for the Goods received and accepted and Services accepted by Buyer prior to the termination.
18. Waiver. No waiver by Buyer of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
19. Confidential Information. All non-public, confidential or proprietary information of Buyer, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, and any Buyer IP disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by Buyer in writing. Upon Buyer's request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
20. Force Majeure. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such party's (the "Impacted Party") failure or delay is caused by or results from the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, pandemics, epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action (except to the extent arising or resulting from the Impacted Party’s violation of applicable laws); (e) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within five business days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of 30 calendar days following written notice given by it under this Section 20, the other party may thereafter terminate this Agreement upon 5 business days' written notice.
21. Assignment. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign or transfer any or all of its rights or obligations under this Agreement without Seller's prior written consent to any affiliate or to any person acquiring all or substantially all of Buyer's assets.
22. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
23. No Third-Party Beneficiaries. Except as set forth in the following sentence, this Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever. Notwithstanding the foregoing, Seller acknowledges and agrees that each Indemnified Party shall have a right to enforce the indemnification and insurance provisions set forth in these Terms, and that any customer, prime contractor(s), and/or owner(s) or any projects for which the Services or Goods are being contracted for by Customer as identified in a Statement of Work shall be entitled to rely on and benefit from all warranties and representations with respect to the Services set forth in this Agreement and any Statement of Work.
24. Governing Law and Disputes. The parties will make a good-faith effort to resolve any dispute arising under or relating to this Agreement through discussion and mediation. This Agreement will be construed and governed by the laws of the State of Oregon without regard to the conflict-of-laws provisions of any state. The state or federal courts located in Multnomah County, Oregon, will be the sole and exclusive forum for any claim arising out of or related to this Agreement, and each party waives all objections to the jurisdiction of such courts including on grounds of lack of personal jurisdiction or improper venue and agrees only to bring claims in such forum. Notwithstanding the prior sentence, either party may bring action to enforce a judgment or final order issued by a state or federal court located in Multnomah County, Oregon, in any jurisdiction.
25. Attorney Fees. If any suit or action is filed by a party to enforce this Agreement or otherwise with respect to the subject matter of this Agreement, the prevailing party will be entitled to recover reasonable attorney fees incurred in preparation or in prosecution or defense of such suit or action as fixed by the trial court and, if any appeal is taken from the decision of the trial court, reasonable attorney fees as fixed by the appellate court.
26. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the purchase order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
27. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
28. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement specifically including, but not limited to, the following provisions: Insurance, Indemnification, Compliance with Laws, Confidential Information, Governing Law and Disputes, and Survival.
29. Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
Revised 12/16/2025