TERMS AND CONDITIONS OF PURCHASE
1. Agreement
These Terms and Conditions of Purchase (this “Agreement”) are incorporated into, and form a part of, all purchase orders (each, an “Order”) issued by Seakeeper, Inc. (“Seakeeper” and/or “Buyer”) to Seller for the purchase of Goods, which shall mean all tangible products, materials, equipment, components, and related items, including any packaging,
documentation, and other deliverables, as specified in the applicable Order). Seakeeper’s submission of the Order is conditioned on Seller’s agreement that any terms different from or in addition to the terms of the Order, whether communicated orally or contained in any purchase order confirmation, invoice, acknowledgment, release, acceptance, or other written correspondence, irrespective of the timing, shall not form a part of the Order, even if Seller purports to condition its acceptance of the Order on Seakeeper’s agreement to such different or additional terms. Any reference to Seller’s quotation, bid, or proposal will not be deemed acceptance of any term, condition, or instruction contained in that document and are explicitly rejected. No course of prior dealing or usage of the trade will be used to modify, supplement, or explain any term herein. No change to or modification of the Order will be binding upon either party unless in writing, specifically identifying that it is amending the Order, and signed, or approved electronically, by an authorized representative of both parties. The Order is accepted by Seller upon the return of the acknowledgment by Seller of the Order.
2. COMMERCIAL TERMS: PRICING, CHANGE MANAGEMENT, AND DELIVERY
Discount:
A discount of zero point five percent (0.5%) shall be applied to any payments made by Seakeeper if paid within ten (10) days after Seller’s shipment of Goods.
Pricing, Taxes and Fees:
Prices for Goods are fixed for the duration of the applicable Order and shall not be subject to adjustment except as expressly approved in writing by Seakeeper. Prices do not include any sales, use, excise, property, import, export, or such taxes, fees, and tariffs that may be levied on the transaction by local, state, federal, or foreign governments and any proposed changes to the amount or applicability of such charges must be submitted to Seakeeper in writing at least ninety (90) calendar days in advance and shall not be effective without Seakeeper’s prior written approval.
Please note, no tariff surcharge will be accepted without prior notice and written approval. When purchasing materials, you must inform us and request authorization of any tariff-related price impact in advance before placing order. If there is an effect on the pricing from tariffs, we require authorization from us before proceeding with the purchase at the new tariff-influenced pricing. Seakeeper will reject all quotes, invoices, and purchase orders that include, but are not limited to, the following: the application of any new tariffs, unscheduled cost adjustments, passthroughs of levied tariffs, tariff surcharges, unforeseen changes in raw material pricing, and cost increases stemming from international monetary fluctuations on imports.
Change Window:
Seakeeper reserves the right at any time to direct changes or cause Seller to make changes, to the drawings, designs, specifications, method of shipment or packing, quantity, or time or place of delivery of the Goods or to otherwise change the scope of the work covered by a valid Order or agreement including work with respect to such matters as inspection, testing or quality control, and Seller agrees to (a) promptly make such changes, and (b) accept any subsequently issued Orders implementing such changes. Any difference in price or time for performance resulting from such changes shall be equitably adjusted in Seakeeper’s sole discretion after receipt of documentation in such form and detail as it may direct.
Delivery:
Seller agrees to ship all Goods on time, which shall mean no earlier than five (5) business days before the delivery date specified in the Order and no later than five (5) business days later than specified delivery date. If for any reason, Seller anticipates that a delivery may not be on time, Seller will notify Seakeeper promptly. If a delivery is not made on-time or if notice is given that a delivery is expected to be late, Seakeeper may either exercise Late Delivery Penalty section below or cancel the Order by delivering written notice of the cancellation to Seller. Upon such cancellation, neither party shall have any liability or obligations related to, or arising from, that Order. Absent such cancellation notice, Seller will deliver the Order on an expedited basis where Seller will be obligated to pay the delta between standard freight cost and reasonable expedited charges.
Excusable Delays:
Should Seller’s performance under this Agreement be delayed as a result of fire, earthquake, flood or other natural catastrophe, operational or maintenance problems, war, strike, labor dispute, accident, terrorist activity, or any event or cause beyond Seller’s control, then Seller shall be excused from performance for a period of time equal to the duration of such delay plus any additional time necessary to restore the facilities (the “Force Majeure Period”). Seller’s performance shall only be temporarily excused with respect to Orders to be performed by Seller during the Force Majeure Period.
Late Delivery Penalty:
If Seller delivers the Goods later than scheduled, Seakeeper may assess as liquidated damages zero point five percent (0.5%) of the price of the delayed Goods per day of delay following grace period of five (5) business days (the “Delay Period” ), up to a maximum cap of five percent (5%) of such price of delayed Goods. The parties agree such liquidated damages are a reasonable pre-estimate of such damages Seakeeper shall suffer as a result of delay based on circumstances existing at the time this Order was issued; and are to be assessed as liquidated damages and not as a penalty. Seakeeper’s resort to liquidated damages for the Delay Period precludes Seakeeper’s right to other remedies, damages and choices under any Order during the delivery period.
Notwithstanding the foregoing, Seller shall not be liable for liquidated damages for any delay that qualifies as an excusable delay under the Section titled “Excusable Delay,” provided that Seller gives Seakeeper written notice of the anticipated delay no less than ten (10) business days prior to the scheduled delivery date. Failure to provide such notice shall render the delay ineligible for treatment as an excusable delay for purposes of this Section.
3. QUALITY
As a supplier to Seakeeper, your commitment to product quality, process discipline, and proactive communication is critical to the mutual success of our partnership. The terms and conditions of the Seakeeper Supplier Manual, located at ride.seakeeper.com/supplierquality-manual, are deemed fully incorporated into this Terms and Conditions of Purchase and are mandatory and binding for all Sellers providing production parts or materials to Seakeeper.
4. SEAKEEPER SUPPLIED MATERIALS, TOOLING, EQUIPMENT AND TECHNICAL DATA
Title to any material, tooling, equipment, samples, drawings, know-how, or technical data that Seakeeper pays for or provides to Seller, including derivatives and replacements thereof (“Buyer Property”), will remain or vest exclusively with Seakeeper, and shall not be used by Seller for any purpose other than manufacturing Goods to be sold and delivered to Seakeeper. Seller shall at its expense maintain all such Buyer Property in its possession in good condition and repair, not allow any liens to be placed upon it, and indemnify Seakeeper for all damage or loss to such Buyer Property (other than ordinary wear and tear). Upon the termination of this Agreement or request by Seakeeper, Seller shall promptly deliver the Buyer Property to Seakeeper or Seakeeper’s designee at Seakeeper’s sole cost and expense. Seakeeper reserves the right, upon reasonable notice to Seller, to gain access to Seller’s facilities and to Seller’s personnel involved with the operation of the Buyer Property to (a) view the state of repair and condition of the Buyer Property, and (b) conduct periodic physical audits of the Buyer Property. Seller shall be required to mark all Buyer Property per Seakeeper’s reasonable specifications, including Seakeeper’s asset numbers.
Title to any material, tooling, equipment, samples, drawings, know-how, or technical data that Seller provides to Seakeeper, including derivatives and replacements thereof, will remain or vest exclusively with Seller, and shall not be used by Seakeeper for any purpose other than in furtherance of this Agreement.
5. WARRANTY
Seller warrants to Seakeeper that, after shipment, and during the entire Warranty Period specified below, all Goods furnished (including all replacement or corrected Goods or components which Seller furnishes pursuant to this warranty) will:
- be free from defects in material and workmanship;
- expressly conform to applicable written specifications for the Goods;
- comply with all applicable US national and local laws; and
- if designed by Seller, not infringe any patent, published patent application, or other intellectual property rights of any third party existing as of the date of delivery, and not utilize misappropriated third party trade secret information.
The Warranty Period will be for a period of twenty-four (24) months from the date of receipt.
These warranties will survive any delivery, inspection, acceptance, or payment by Seakeeper for the entire Warranty Period. Goods that meet the preceding standards are collectively called “Conforming Goods.” If Conforming Goods are not furnished within a mutually agreed upon lead-time then Seakeeper may, at its election and in addition to any other rights or remedies it may have at law or in equity, have the nonconforming Goods repaired, replaced or corrected as mutually agreed upon at Seller’s expense. Unless set-off by Seakeeper, Seller will reimburse Seakeeper for all such costs upon receipt of Seakeeper’s invoice.
6. SUPPLIER CHANGES
Seller shall notify Seakeeper in writing in advance of any and all: (a) changes to the Goods, including any component or sub-component thereof, and their respective specifications and/or composition; (b) process changes; (c) plant and/or equipment/tooling changes or moves; (d) transfer of any work to another site; and/or (e) sub-supplier changes, and no such change shall occur until Seakeeper has approved such change in writing. Seller shall be responsible for obtaining, completing, and submitting proper documentation regarding any and all changes, including complying with any written change procedures reasonably issued by Seakeeper. Such documentation and procedures of any changes shall not modify the material obligations of the parties as set forth in this Agreement.
7. TERMINATION
Either of Seller on the one hand or Seakeeper on the other hand may terminate this Agreement and/or pursue all remedies available at law or in equity if the other party breaches a material term of this Agreement and does not cure such breach in all material respects within ninety (90) days after receiving written notice to cure.
This Agreement may also be terminated immediately by a party, if: (a) the other party makes a general assignment for the benefit of creditors; (b) a receiver of all or substantially all of the property of the other party is appointed and not removed within thirty (30) days; (c) the other party files a petition for reorganization under the provisions of any bankruptcy law; (d) the other party files a petition for any arrangement under bankruptcy law; or (e) the other party files a petition in bankruptcy or is adjudged a bankrupt.
Upon termination of this Agreement, Seller shall remain responsible for the delivery of any Goods ordered by Seakeeper prior to the effective date of such termination.
8. GENERAL
Excusable Delays:
Neither party shall disclose the other party’s Confidential Information to any person or entity except to its employees, officers, directors, affiliates, agents, professional advisors, and subcontractors who are bound by obligations of confidentiality at least as restrictive as those set forth herein and who have a need to know such information in order to perform their obligations under this Agreement. Each party may use the other party’s Confidential Information solely as necessary to perform its obligations or exercise its rights under this Agreement. “Confidential Information” means any non-public information disclosed by one party (“Disclosing Party”) to the other (“Receiving Party”) that a reasonable person would understand to be confidential in light of the nature of the information or the circumstances of its disclosure. Confidential Information includes, without limitation, business and financial information, existing and contemplated projects, joint ventures, market opportunities, trade secrets, proprietary information, intellectual property, research and development, technical documents and reports, engineering designs and drawings, customer and vendor lists, contracts, pricing schedules, sales and business information, personnel information, and any information of the Disclosing Party’s clients. Confidential Information may be disclosed in written, electronic, oral, or any other form, and need not be marked “confidential” or “proprietary” to be protected hereunder.
The obligations set forth in this Section shall not apply to information that the Receiving Party can demonstrate: (a) is or becomes publicly available without breach of this Agreement; (b) was lawfully known to the Receiving Party prior to disclosure by the Disclosing Party; (c) is lawfully received by the Receiving Party from a third party without restriction; or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
All Confidential Information furnished by Buyer to Seller, or developed by Seller in the course of performing its obligations under this Agreement, shall be deemed the Confidential Information of Buyer.
The Receiving Party shall return or destroy all Confidential Information of the Disclosing Party upon request or upon termination of this Agreement, except as otherwise required by law.
This Section shall survive termination of this Agreement and remain in effect for a period of five (5) years thereafter; provided, however, that trade secrets shall remain protected for so long as they constitute trade secrets under applicable law.
Intellectual Property:
Any intellectual property rights belonging to a party prior to the operation of this Agreement (“Background IP”) shall remain vested in that party. Nothing in this Agreement or any related document shall be construed to grant a party any proprietary or other rights in or to any of the other party’s pre-existing information, materials, or intellectual property, including without limitation patents, copyrights, trade secrets, trademarks, or other intellectual property rights.
Notwithstanding the foregoing, any intellectual property rights in or relating to any Goods, components, or materials purchased by Buyer from Seller that are specifically developed by Seller for Seakeeper under this Agreement and incorporated into, combined with, or otherwise used in connection with a Seakeeper product (“Foreground IP”) shall vest in and be owned exclusively by Buyer. Seller hereby assigns, and agrees to assign, all such rights to Buyer and shall take any further actions reasonably required to evidence or perfect such ownership.
To the extent any Seller Background IP is incorporated into or necessary for the use, manufacture, sale, or distribution of the Goods or Seakeeper’s final products, Seller grants to Seakeeper a non-exclusive, royalty-free, worldwide, irrevocable, and perpetual license to use, reproduce, modify, distribute, and otherwise exploit such Background IP solely in connection with Seakeeper’s products and business operations.
Seller shall not reverse engineer, disassemble, or otherwise attempt to recompose any materials, prototypes, or other tangible objects that embody any intellectual property of Buyer.
Set-Off:
Seakeeper may deduct any amount owing from Seller to Seakeeper hereunder (for breach of warranty or any other provision hereof) as a setoff against any amount due or owing to Seller under any Order.
Assignment/Subcontracting:
Seller will not assign this Agreement, any Order, or any rights or obligations hereunder or thereunder, or subcontract all or any aspect of the work called for under any Seakeeper order without the prior written approval of Seakeeper. Any assignment without Seakeeper’s written approval will be voidable at the option of Seakeeper.
Indemnification – General:
Except to the extent of Seakeeper’s gross negligence or willful misconduct, Seller will, at its expense, defend, indemnify and hold harmless Seakeeper and its subsidiaries, affiliates, and agents, and their respective officers, directors, shareholders, and employees (collectively “Seakeeper Indemnitees”) from and against any and all loss, cost, expense, damage, claim, demand or liability, including reasonable attorney and professional fees and costs and the cost of settlement, compromise, judgment or verdict incurred by or demanded of a Seakeeper Indemnitee arising out of, resulting from or occurring in connection with Seller’s negligence, willful misconduct, or associated with the Goods. In no event will Seller enter into any settlement without Seakeeper’s prior written consent, which will not be unreasonably withheld.
Except to the extent of Seller’s negligence or willful misconduct, Seakeeper will, at its expense, defend, indemnify and hold harmless Seller and its subsidiaries, affiliates and agents, and their respective officers, directors, shareholders, and employees (collectively “Seller Indemnitees”) from and against any and all loss, cost, expense, damage, claim, demand or liability, including reasonable attorney and professional fees and costs and the cost of settlement, compromise, judgment or verdict incurred by or demanded of a Seller Indemnitee arising out of, resulting from or occurring in connection with Seakeeper’s gross negligence or willful misconduct. In no event will Seakeeper enter into any settlement without Seller’s prior written consent, which will not be unreasonably withheld.
Indemnification – IP:
With respect to Goods provided under any Order, Seller will, at its expense, indemnify and hold harmless Seakeeper Indemnitees from and against any and all loss, cost, expense, damage, claim, demand or liability, including reasonable attorney and professional fees and costs and the cost of settlement, compromise, judgment or verdict incurred by or
demanded from Seakeeper Indemnitees arising out of, resulting from, or occurring in connection with any: (a) patent, copyright or trademark infringement; (b) unlawful disclosure, use or misappropriation of a trade secret; or (c) violation of any other third party intellectual property right, and from expenses incurred by Seakeeper Indemnitees in defense of such suit, claim or proceeding. Seller will have the right to conduct the defense of any such claim or action and, consistent with Seakeeper Indemnitees’ rights hereunder, all negotiations for its settlement; provided, however, in no event will Seller enter into any settlement without Seakeeper’s prior written consent, which will not be unreasonably withheld. Seakeeper Indemnitee, at its sole cost and expense, may participate in such defense or negotiations to protect its interests. If any injunction or restraining order is issued, Seller will, at its expense, obtain for Seakeeper Indemnitee either the right to continue to make, use, offer to sell, sell or import the Goods or replace or modify the Goods to make them non-infringing. The indemnity set forth in this section shall not apply to any Goods supplied in accordance with a design not developed by Seller as part of the Order or modifications of the Goods by Seakeeper or combinations of the Goods by Seakeeper with other Seakeeper furnished components not furnished by Seller.
Exclusivity:
Seller agrees that during the term of this Purchase Order and for any period in which Seller is supplying the Goods and/or services specified herein, Seller shall sell such Goods and/or services exclusively to Seakeeper, during the term of this Agreement, and for twenty-four (24) months post last delivery and shall not offer, sell, or supply the same or substantially similar goods and/or services to any other party without Seakeeper’s prior written consent. This exclusivity applies to marine motion control markets, customers, and channels where such Goods and/or services are sold or distributed. Seller acknowledges that this exclusivity is a material condition of this Agreement, and any breach may result in immediate termination and legal remedies available to Seakeeper.
Liability:
EXCEPT FOR SELLER’S OBLIGATIONS UNDER SECTION 3. QUALITY AND SECTION 9. GENERAL,NOTWITHSTANDING ANYTHING ELSE IN THE ORDER OR OTHERWISE, IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER OR UNDER ANY ORDER FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT, PUNITIVE, LIQUIDATED OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS OPPORTUNITY, CONTRACTUAL LIABILITY OF SEAKEEPER TO ITS CUSTOMERS, LOST PROFITS AND LOST REVENUE, LOSS OF USE OF THE GOODS OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWNTIME COSTS OR CLAIMS OF SEAKEEPER’S CUSTOMERS OR OTHER THIRD PARTIES), REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IRRESPECTIVE OF WHETHER CLAIMS OR ACTIONS FOR SUCH DAMAGES ARE BASED UPON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, CONTRIBUTION, INDEMNITY, INFRINGEMENT, STATUTE OR OTHERWISE.
SEAKEEPER’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE ACTUAL FEES PAID BY SEAKEEPER TO SELLER UNDER THE RELEVANT PURCHASE ORDER GIVING RISE TO THE CLAIM, PROVIDED THAT SUCH LIABILITY SHALL NOT EXCEED $500,000 IN THE AGGREGATE AND SELLER SHALL BE RESPONSIBLE FOR AND SHALL RELEASE, PROTECT, DEFEND, INDEMNIFY AND HOLD CONTRACTOR HARMLESS FROM ANY CLAIMS EXCEEDING SUCH AMOUNT.
Relationship of Parties:
Nothing in this Agreement or in any Order will be construed to place Seller and Seakeeper in an agency, employment, franchise, joint venture or partnership relationship. Neither party has the authority to obligate or bind the other in any manner, and nothing contained in this Agreement or in any Order will give rise or is intended to give rise to rights of any kind to any third parties. Neither party will make any representation to the contrary. The parties agree that Seller will perform its obligations under this Agreement and all Orders as an independent contractor. Seller retains the right to exercise full control of, supervision over and responsibility for Seller’s performance hereunder, including the
employment, direction, compensation and discharge of Seller’s personnel, as well as compliance with workers’ compensation, unemployment, disability insurance, social security, withholding and all other laws, rules, codes, regulations and ordinances governing such matters. Additionally, there will be no third-party beneficiaries to this Agreement.
Miscellaneous:
Nothing in this Agreement or in any Order will be construed to place Seller and Seakeeper in an agency, employment, franchise, joint venture or partnership relationship. Neither party has the authority to obligate or bind the other in any manner, and nothing contained in this Agreement or in any Order will give rise or is intended to give rise to rights of any kind to any third parties. Neither party will make any representation to the contrary. The parties agree that Seller will perform its obligations under this Agreement and all Orders as an independent contractor. Seller retains the right to exercise full control of, supervision over and responsibility for Seller’s performance hereunder, including the
employment, direction, compensation and discharge of Seller’s personnel, as well as compliance with workers’ compensation, unemployment, disability insurance, social security, withholding and all other laws, rules, codes, regulations and ordinances governing such matters. Additionally, there will be no third-party beneficiaries to this Agreement.
Governing Law:
The construction, interpretation, and performance hereof and all transactions hereunder shall be governed by the laws of the State of Delaware, U.S.A. without regard to or application of its principles or laws regarding conflicts of laws, and excluding the United Nations Convention on the International Sale of Goods of 1980 (and any amendments or successors thereto).
