INTEGRATED MARINE SERVICES, INC.
SUBCONTRACT/VENDORS
TERMS AND CONDITIONS
INCORPORATION OF FAR and DFAR CLAUSES
If this Purchase Order (“PO”) is issued in support of a US Government contract, the following terms and conditions apply:
1. Acceptance of Contract/Terms and Conditions.-The Federal Acquisition Regulation (FAR) and Defense Federal Acquisition Regulation Supplement (DFARS) clauses referenced in the Prime Contract are incorporated herein by reference, with the same force and effect as if they were given in full text, and are applicable, including any notes following the clause citation, to this Contract.
Purchase Order (PO), including the terms and conditions on the face and any attachments hereto, contains the final and exclusive agreement between Buyer and Seller. Reference to Seller’s bids or proposals in the PO shall not affect their terms and conditions hereof, unless otherwise specifically agreed to in writing by Buyer. No modification of this PO shall be effective unless in writing and signed by Buyer.
2. Changes. – Buyer shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery, method of transportation and other terms of this PO. If any such changes cause an increase or decrease in the cost of or time required for performance, an equitable adjustment shall be made and this PO shall be modified in writing accordingly. If Seller commences performance of the change without objection to such terms, or if Seller does not object to such terms in writing within ten (10) days of receipt of such notice, Buyer shall bind Seller’s proposed terms. Seller of the change notification must assert any claim by Seller for adjustment under this clause in writing within ten (10) days from receipt.
3. Proprietary Information; Confidentiality. – Seller shall consider all information furnished by Buyer to be confidential and shall not disclose any such information to any other person or use such information for any purpose other than performing this PO. This provision shall apply to drawings, specifications, correspondence and all other documents prepared by Seller for Buyer or by Buyer for Seller in connection with this PO. Unless otherwise agreed to in writing, no information disclosed in any manner, at any time, by Seller to Buyer shall be deemed confidential and Seller shall have no rights against Buyer with respect thereto.
4. Proprietary Rights Indemnification. – Seller shall, at Seller’s expense, defend, indemnify, and hold harmless Buyer against any and all losses, damages, claims, liabilities and expenses (including attorney’s fees) resulting from all proceedings or claims against Buyer, Buyer’s customers, their subsidiaries and affiliates and their respective customers, for infringement or alleged infringement by the goods or services furnished under this PO, or any part thereof, of patent, copyrights, trademarks or other proprietary rights of a third party.
5. Quality; Inspection; Testing. – Payment for goods or services delivered hereunder shall not constitute acceptance. Buyer shall have the right to inspect such goods and services and to reject any and all such goods or services that are in Buyer’s judgment defective or nonconforming. Buyer may charge Seller all expenses of unpacking, examining, replacing and reshipping such goods. Nothing contained in this PO shall relieve in any way the Seller from its obligation of testing, inspection and quality control.
6. Termination.
a. For Buyer’s Convenience. – Buyer reserves the right to terminate, upon written notice, this PO, in whole or in part for its sole convenience. In the event of such termination, Seller shall immediately stop all work hereunder, and shall immediately cause any suppliers or subcontractors to cease such work.
b. For Cause. – Buyer may terminate this PO or any part hereof, in addition to any other rights and remedies it may have, in the event Seller fails to comply with any of the terms and conditions of this PO. Late deliveries, delivery of defective or nonconforming goods or services and failure to provide Buyer, upon request of reasonable assurance of future performance shall, without limitation, all be cause for allowing Buyer to terminate this PO for cause.
7. Warranty – Seller warrants that all goods and services furnished under this PO shall be free from all defects in material and workmanship, be new unless otherwise specified herein, and conform to Buyer’s specifications. All goods shall be adequately packaged, marked, and labeled. Seller further warrants that all goods and services furnished hereunder shall be merchantable and fit for Buyer’s intended purposes. Inspection, test, acceptance or use of or payment for goods and services furnished hereunder shall not affect Seller’s obligations under this warranty. Seller’s warranty shall run to Buyer, its successors, assigns and customers, and any other party to which Buyer is correspondingly or similarly liable with respect thereto. Seller agrees to promptly replace or correct defect of any goods or services not conforming to the foregoing warranty without expense to Buyer, when notified of such non-conformity or defect by Buyer, provided that Buyer elects to provide Seller with the opportunity to do so. In the event of failure of Seller to correct or replace defective or nonconforming goods or services promptly, Buyer may make such correction or replace such goods or services and charge Seller for the cost incurred by Buyer. The warranties, rights and remedies provided Buyer herein are not exclusive and are in addition to any other rights or remedies provided by law or in equity, all warranties, rights and remedies being cumulative.
8. Assignment and Subcontracting. – Seller shall not assign the accounts receivable or subcontract this PO or any right or obligation hereunder without the prior written consent of Buyer.
9. Insurance. – Seller agrees that all work performed under this PO shall be done as an independent contractor and that the persons doing such work shall not be considered employees of Buyer. Seller shall maintain all necessary insurance coverage, including without limitation public liability, automobile liability and Workmen’s Compensation insurance in amounts reasonably determined by Buyer and agrees to furnish evidence of such insurance at Buyer’s request.
10. Transportation; Delivery. – If, in order to comply with Buyer’s required delivery date, it becomes necessary for Seller to ship by a more expensive way than specified in the PO, any increased costs resulting there from shall be paid for by Seller, unless the necessity for expedited handling and shipment has been caused by Buyer. Unless otherwise specified in this PO, the prices stated include packing, insurance, freight and delivery FOB to the address specified by Buyer. When authorized to prepay and bill, the Seller must submit a copy of the paid freight bill or equivalent with the invoice. Time is of the essence on all deliveries. If Buyer reasonably believes deliveries would not be so made, Buyer may, in addition to other rights and remedies it may have, terminate all or part of this PO for cause.
11. Compliance with Laws and Regulation. – Seller agrees at all times to comply with all applicable Federal, State and local laws, rules and regulations, including but not limited to, Executive Order 11246 as amended on Equal Opportunity, the Fair Labor Standards Act, and the Walsh-Healy Public Contracts Act.
12. Indemnification. – Seller shall, at Seller’s expense, defend, indemnify, and hold harmless Buyer against any and all losses, damages, claims, or liabilities and expenses (including attorney’s fees) arising out of or resulting in any way from the goods or services purchased hereunder, including without limitation strict liability or from any act or omission of Seller, its agents, employees or subcontractor. This indemnity shall be in addition to the warranty obligations of Seller.
13. Governing Law; Disputes. – This Agreement shall be governed by the laws of the State of California. Pending any resolution, decision, appeal or judgment in such proceedings or the settlement of any dispute arising under this PO, Seller shall proceed diligently with the performance of this PO in accordance as directed by Buyer.
14. Government Contract Provisions. – If this PO is placed under a U.S. Government contract, the clauses listed below, as contained in the Federal Acquisition Regulations (FAR) and the Defense FAR Supplement (DFARS) in effect as of the date of the U.S. Government prime contract identified in this PO (“Prime Contract”), are hereby incorporated into this PO by reference. as used in the FAR and DFAR clauses, the terms “Government” and :Contracting Officer” shall mean “Buyer”, “Contractor” shall mean “Seller”, “Contract” shall mean this “PO”, and “subcontract” shall mean “Seller’s subcontract or purchase order issued pursuant to the PO”, unless the context of the clause requires otherwise.
15. Gifts. – Buyer’s employees and members of their families will not accept gifts or gratuities of any type from any supplier or prospective supplier and Seller shall not make or offer any such gifts or gratuities to Buyer’s employees and family members.
16. Advertising. – Seller shall not advertise or publish the fact that Buyer has contracted to purchase goods or services from Seller or disclose any information relating to this PO without Buyer’s written permission.
17. Non-Waiver. – Failure of Buyer at any time to require performance of any provision of the PO shall not limit Buyer’s right to enforce the provision, nor shall any waiver by Buyer of any breach of any provision constitute a waiver of or prejudice Buyer’s right to otherwise demand strict performance of the provision or any other provision.
Integrated Marine Services, Inc.
2320 Main Street
Chula Vista, CA, 91911
Tel: 619.429.0300 Fax: 619.429.0700