Legal

1. Terms

By accessing this website, you are agreeing to be bound by these web site Terms and Conditions of Use, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws. If you do not agree with any of these terms, you are prohibited from using or accessing this site. The materials contained in this web site are protected by applicable copyright and trade mark law.

2. Use License

a. Permission is granted to temporarily download one copy of the materials (information or software) on Seaman Corporation’s web site for personal, non-commercial transitory viewing only. This is the grant of a license, not a transfer of title, and under this license you may not:
       i.  modify or copy the materials;
       ii.use the materials for any commercial purpose, or for any public display (commercial or non-commercial);
       iii. attempt to decompile or reverse engineer any software contained on Seaman Corporation’s web site;
       iv. remove any copyright or other proprietary notations from the materials; or
        v. transfer the materials to another person or “mirror” the materials on any other server.
b. This license shall automatically terminate if you violate any of these restrictions and may be terminated by Seaman Corporation at any time. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format.

3. Disclaimer

    a. The materials on Seaman Corporation’s web site are provided “as is”. Seaman Corporation makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights. Further, Seaman Corporation does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its Internet web site or otherwise relating to such materials or on any sites linked to this site.

4. Limitations

In no event shall Seaman Corporation or its suppliers be liable for any damages (including, without limitation, damages for loss of data or profit, or due to business interruption,) arising out of the use or inability to use the materials on Seaman Corporation’s Internet site, even if Seaman Corporation or a Seaman Corporation authorized representative has been notified orally or in writing of the possibility of such damage. Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to you.

5. Revisions and Errata

The materials appearing on Seaman Corporation’s web site could include technical, typographical, or photographic errors. Seaman Corporation does not warrant that any of the materials on its web site are accurate, complete, or current. Seaman Corporation may make changes to the materials contained on its web site at any time without notice. Seaman Corporation does not, however, make any commitment to update the materials.

6. Link

Seaman Corporation has not reviewed all of the sites linked to its Internet web site and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by Seaman Corporation of the site. Use of any such linked web site is at the user’s own risk.

7.Site Terms of Use Modifications

Seaman Corporation may revise these terms of use for its web site at any time without notice. By using this web site you are agreeing to be bound by the then current version of these Terms and Conditions of Use.

8. Governing Law

Any claim relating to Seaman Corporation’s web site shall be governed by the laws of the State of Ohio without regard to its conflict of law provisions.

General Terms and Conditions applicable to Use of a Web Site.

1. Applicability.

This purchase order is an offer by Seaman Corporation (the “Seaman”) for the purchase of the goods (“Goods”) and/or services, including work product and deliverables (collectively, “Services”), specified on the face of Seaman’s purchase order (collectively, “Goods and Services”) from the party to whom the purchase order is addressed (the “Supplier”) in accordance with and subject to these terms and conditions (these “Terms”; together with the terms and conditions on the face of Seaman’s purchase order, the “Order” or this “Order”). This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, express or implied, with respect to the subject matter of the Order. This Order expressly limits Supplier’s acceptance to the terms of the Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Supplier’s general terms and conditions of sale, proposal, quotation, acknowledgement, or any other document issued by Supplier in connection with this Order. These Terms apply to any repaired or replacement Goods or reperformed Services provided by Supplier hereunder.  Seaman is not obligated to any minimum purchase or future purchase obligations under this Order.

2. Acceptance.

This Order is not binding on Seaman until Supplier accepts the Order by (a) written acceptance or acknowledgement, (b) commencing performance, or (c) acceptance of payment. Any additional or different terms proposed by Supplier are expressly objected to and rejected by Seaman. Any such proposed terms will be null and void.

3. Delivery Date.

Supplier shall deliver the Goods in the quantities and on the date(s) and perform the Services by the date(s) specified in this Order or as otherwise agreed in writing by the parties (the “Delivery Date”). Timely delivery and performance of the Goods and Services is of the essence. Supplier’s quoted lead times are not subject to change without Seaman’s prior written consent. If Supplier fails to deliver the Goods and/or perform the Services in full on or by the Delivery Date, Seaman may terminate this Order immediately by providing written notice to Supplier and Supplier shall indemnify Seaman against any losses, claims, damages, and reasonable costs and expenses directly attributable to Supplier’s failure to deliver the Goods and/or Services on or by the Delivery Date. Seaman has the right to return any Goods delivered prior to the Delivery Date at Supplier’s expense and Supplier shall redeliver such Goods on the Delivery Date. Supplier shall pay all additional freight costs if Supplier needs to use an expedited shipping method to meet agreed delivery dates due to its own acts or omissions.

4. Quantity; Forecasts.

Quantities purchased by Seaman shall be as stated in this Order with no minimum purchase obligations. If Supplier delivers less than or more than 100% of the quantity of Goods ordered, Seaman may in its sole discretion reject all such Goods. Any such rejected Goods shall be returned to Supplier at Supplier’s risk and expense. If Seaman does not reject the Goods and instead accepts the delivery of Goods at the reduced or increased quantity, the Price for the Goods shall be adjusted on a pro-rata basis. For “blanket” Orders with no quantity specified, Supplier shall deliver Goods and/or Services as scheduled by Seaman.  Any forecasts of Goods or Services provided by Seaman to Supplier are subject to change from time to time, with or without notice to Supplier, and shall not be binding on Seaman.  Unless otherwise expressly stated in this Order, Seaman makes no commitment or guaranty of any kind to Supplier regarding Seaman’s requirements for Goods and/or Services.

5. Delivery Location.

All Goods and Services shall be delivered to the address specified in this Order (the “Delivery Location”) during Seaman’s normal business hours or as otherwise instructed by Seaman.

6. Shipping Terms.

Unless otherwise expressly set forth on the face of this Order, delivery shall be made in accordance with Incoterms 2020 FCA to the place state in this Order or if not stated, Seaman’s place of business. Supplier shall give written notice of shipment to Seaman when the Goods are delivered to a carrier for transportation. Supplier shall provide Seaman all shipping documents, including the commercial invoice, packing list, and any other documents necessary to promptly release the Goods to Seaman after Supplier delivers the Goods to the transportation carrier. The Order number must appear on all shipping documents, shipping labels, invoices, correspondence and any other documents pertaining to the Order.  If Seaman pays for transportation, Supplier shall comply with Seaman routing instructions, including choice of designated logistics carrier.

7. Title and Risk of Loss.

Title passes to Seaman upon the earlier of (a) payment by Seaman or (b) receipt of the Goods and/or Services by Seaman per the delivery terms in the Order. Supplier bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.

8. Packaging.

All Goods shall be packed for shipment according to Seaman’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Supplier shall be responsible for the cost of boxing, crating and packing. Supplier shall be liable for damage to Goods caused by improper boxing, crating or packing.  Supplier must provide Seaman prior written notice if it requires Seaman to return any packaging material. Any return of such packaging material shall be made at Supplier’s expense.

9. Amendment and Modification.

If Seaman requires modifications to any aspect of this Order, including drawings, designs or specifications, the parties shall negotiate an equitable adjustment, if any, in the form of a change order or amendment. Supplier shall not make any changes to this Order without Seaman’s prior written consent. No claim by Supplier for adjustment shall be allowed unless in writing and received by Seaman within 30 days from the date notice is received by Supplier. Nothing in this Section shall excuse Supplier from performance of the Order as changed, including during the pendency of any claim. Supplier may not make any change to any process, design, feature, component, raw material, formulation, assembly, fabrication, or procedure of or for any Goods or Services without Seaman’s prior written consent.

10. Inspection and Rejection of Nonconforming Goods and Services.

Seaman has the right to inspect the Goods and/or Services on or after the Delivery Date. Seaman, at its sole option, may inspect all or a sample of the Goods and/or Services, and may reject all or any portion of the Goods and/or Services if it determines the Goods and/or Services are nonconforming or defective. If Seaman rejects any portion of the Goods and/or Services, Seaman has the right, effective upon written notice to Supplier, to: (a) rescind the Order in its entirety; (b) accept the Goods and/or Services at a reasonably reduced price; or (c) reject the Goods and/or Services and require replacement of the rejected Goods or reperformance of the rejected Services. If Seaman requires replacement of the Goods and/or Services, Supplier shall, at its expense, promptly replace the nonconforming Goods and/or re-perform the nonconforming Services 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 Supplier fails to timely deliver replacement Goods or reperform the Services, Seaman may replace them with goods from a third party and/or find another service provider and charge Supplier the cost thereof and terminate this Order for cause pursuant to these Terms. Any inspection or other action by Seaman under this Section shall not reduce or otherwise affect Supplier’s obligations under the Order, and Seaman shall have the right to conduct further inspections after Supplier has carried out any remedial actions.

11. Price.

The price of the Goods and/or Services is the price stated in the Order (the “Price”). If no price is included in the Order, the Price shall be the price set out in Supplier’s published price list in force as of the date of the Order. Unless otherwise specified in the Order, the Price includes all packaging and transportation costs to the Delivery Location, insurance, taxes and tariffs (including without limitation sales, VAT/GST and other taxes and tariffs), customs duties, storage, handling, and all other expenses and charges. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Seaman.

12. Payment Terms.

Supplier shall issue an invoice to Seaman on or any time after the completion of delivery or performance and only in accordance with these Terms. Seaman shall pay all properly invoiced amounts due to Supplier within 90 days after Seaman’s receipt of such invoice or such other period agreed in writing or as expressly set forth in this Order, except for any amounts disputed by Seaman in good faith. All payments hereunder will be made in U.S. dollars and made by check or wire transfer. Supplier shall continue performing its obligations under any Order that is the subject of an invoice dispute. Payment for any Goods and/or Services under this Order shall not constitute acceptance thereof.

13. Setoff.

Without prejudice to any other right or remedy it may have, Seaman reserves the right to set off at any time any amount owing to it by Supplier against any amount payable by Seaman to Supplier.

 

14. Competetiveness

Supplier is and will remain competitive in terms of price, quality, delivery, service, and technology with respect to the Goods and/or Services. If Seaman provides Supplier with written notice with specific information regarding the nature of any non-competitiveness of Supplier, then Supplier will promptly remedy such non-competitiveness no later than 15 days after receipt of such notice. If Supplier fails or elects not to remedy its non-competitiveness, as determined by Seaman in its sole discretion, Seaman may terminate any Order, in whole or in part, for cause pursuant to these Terms.

15. Warranties.

Supplier warrants to Seaman that all Goods and Services will: (a) be merchantable and free from defects in workmanship, material and design; (b) be fit for the purposes intended by Seaman; (c) conform to applicable specifications, drawings, designs, standards, samples, descriptions and other requirements specified or furnished by Seaman; (d) be free and clear of all liens, security interests, claims and encumbrances; (e) be manufactured entirely with new materials and free from latent defects, (f) not infringe or misappropriate any third party’s patent or other intellectual property rights, and (g) be free from viruses, disabling code, and open source software unless reviewed and approved by Seaman. Supplier further warrants to Seaman that the Services will be performed in a timely, professional, and workmanlike manner consistent with best industry standards and in compliance with all appliable laws, rules, and regulations. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods and/or Services by Seaman. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Seaman’s discovery of the noncompliance of the Goods and/or Services with the foregoing warranties.

In the event of warranty breach, Seaman will be entitled to all rights and remedies available at contract, law, or equity, including without limitation at no cost to Seaman and in Seaman’s sole discretion one or more of the following remedies: (a) repair or replacement of defective Goods, (b) reperformance of Services; (c) credit; (d) recovery of the costs and expenses of removing the Goods from any system, assembly, or component and returning the Goods; and/or (e) recovery of any other costs, expenses, or losses caused by or resulting from the defective Goods or Services.  Supplier will also reimburse Seaman for any special, incidental and consequential damages and lost revenue and profits caused by such defective or nonconforming Goods and/or Services including without limitation, costs, expenses, and losses incurred by Seaman: (i) in inspecting, sorting, repairing, or replacing such goods or services; (ii) resulting from any production interruptions; (iii) in taking corrective actions, including without limitation recall campaigns; and (iv) in connection with claims for personal injury or property damage.

16. Indemnification.

Supplier shall defend, indemnify and hold harmless Seaman and Seaman’s subsidiaries, affiliates, successors or assigns, and their respective directors, officers, shareholders and employees and Seaman’s customers (collectively, “Indemnitees”) from and 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”) arising out of or occurring in connection with (a) the design, manufacture, sale or use of the Goods and/or Services; (b) Goods delivered or Services performed pursuant to an Order; (c) Supplier’s negligence or willful misconduct; or (d) breach of these Terms and/or any Order. Supplier shall not enter into any settlement without Seaman’s or Indemnitee’s prior written consent.  Supplier shall also defend, indemnify and hold harmless Seaman and any Indemnitee against any and all Losses arising out of or in connection with any claim that Seaman’s or Indemnitee’s use or possession of the Goods and/or use of the Services or any related work product or deliverables infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Supplier enter into any settlement without Seaman’s or Indemnitee’s prior written consent.

17. Seaman Property.

Seaman owns all drawings, patterns, raw materials, fabric, equipment, and other property of any kind provided or made available to Supplier by Seaman for use in Supplier’s performance under this Order (“Seaman Property”).  At all times while in possession of the Seaman Property, Supplier shall (a) store and maintain the Seaman Property in good usable condition;  (b) use reasonable care to protect and prevent damage to the Seaman Property; (c) insure the Seaman Property against all risks in an amount equivalent to the current replacement value thereof and reasonably acceptable to Seaman and if requested name Seaman as an additional insured; (d) keep Seaman’s right, title and interest in the Seaman Property free at all times from all claims, liens, security interests and encumbrances of any kind; (e) promptly return any item included within the Seaman Property upon Seaman’s request for that particular item; (f) segregate the Seaman Property apart from its general inventory and clearly and permanently label such property “Property of Seaman Corporation”; and (g) perform all commercially reasonable acts necessary and/or appropriate to protect and defend Seaman’s ownership interest in the Seaman Property, including without limitation, notifying Supplier’s secured creditors in writing that Seaman is the sole owner of such property. Supplier agrees that Seaman may elect to file a financing statement with the appropriate governmental authority in the appropriate jurisdiction(s) which shall serve as public notice that the Seaman Property is owned by Seaman.  Supplier  further agrees that if a financing statement is filed, it is not intended to be a security interest by Seaman, but is only intended to protect the rights of Seaman as the owner of such property.  SEAMAN MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SEAMAN PROPERTY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

18. Insurance.

Supplier represents that it has and will maintain appropriate insurance coverage, in accordance with best industry practices, with a reputable insurance company against all relevant liabilities, indemnities, losses, and other obligations of Supplier in connection with this Order and Supplier’s operations. Seaman may specify additional insurance coverage requirements applicable to this Order. Such coverage shall not limit Supplier’s liability under this Order. Upon Seaman’s request, Supplier shall provide Seaman with a certificate of insurance from Supplier’s insurer evidencing the insurance coverage. Upon Seaman’s request, the certificate of insurance shall name Seaman as an additional insured. Except where prohibited by law, Supplier shall require its insurer(s) to waive all rights of subrogation against Seaman’s insurers and Seaman or the Indemnitees.

19. Compliance with Law.

Supplier is in compliance with and shall comply with all applicable laws, statutes, rules, regulations, orders, and ordinances, including without limitation, those that relate to wages, hours, employment conditions, equal employment opportunity, health and safety, discrimination, vehicle safety, data protection, anti-bribery, and environmental matters. At Seaman’s request, Supplier will certify in writing its compliance with laws, statutes, rules, regulations, orders, and ordinances. Supplier has and shall maintain in effect all the licenses, permits, and authorizations that it needs to perform its obligations under this Order. Supplier shall comply with all export and import laws of all countries involved in the sale of Goods and/or Services under this Order.

20. Anti-Corruption Compliance.

Supplier shall comply with applicable national and international anti-bribery rules, including without limitation the U.S. Foreign Corrupt Practices Act (FCPA), U.S. Anti-Kickback Act, U.K. Bribery Act, and other similar anti-bribery rules and laws.  Supplier shall not directly or indirectly offer, receive, or solicit any form of kickback, bribe, or other corrupt payment or thing of value to or from any person or organization, including government agencies or officials, business entities or any other person or entity.  Supplier and its affiliates shall at all times keep complete and accurate books and records, and all records and information that Supplier provides to Seaman relating to this Order shall be complete and accurate.

21. Termination for Convenience.

Seaman reserves the right in its sole discretion to terminate this Order, or any part hereof, for convenience upon written notice to Supplier. Upon receipt of termination notice from Seaman, Supplier shall immediately cease all work and cause its suppliers and subcontractors to cease work. Supplier shall have 30 days following any such termination within which to submit documentation to claim reasonable termination costs, if any. Such costs shall only include Supplier’s direct costs that have been incurred as a result of termination. Any claim for termination costs shall be deemed waived unless asserted by Supplier within 30 days after Supplier’s receipt of Seaman’s termination notice.

22. Termination for Cause.

Upon written notice to Supplier, Seaman may terminate all or part of this Order if (a) Supplier defaults in performing under this Order, including late delivery or the failure to make reasonable progress towards completion of this Order, and such default is not cured within 7 days, or (b) in the event of Supplier’s insolvency, bankruptcy, cessation of business operation, the appointment of a receiver for Supplier’s property or business, or any reorganization or assignment by Supplier for the benefit of its creditors.  Without limiting Seaman’s rights, Supplier shall be liable for, and pay to Seaman, any costs in excess of the price of the Goods and/or Services.  In the event of a termination for default, Supplier shall preserve and protect property in its possession where Seaman has an interest, including without limitation, the Seaman Property. Seaman shall be entitled to a refund of all monies paid to Supplier for the terminated Order.

23. Waiver.

No waiver by any party of any of the provisions of this Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

24. Confidential Information; Personal Data.

All non-public, confidential or proprietary information of Seaman, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer names and lists, pricing, discounts or rebates, disclosed by Seaman to Supplier, 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 Order is confidential to Seaman, solely for use in performing this Order and shall not be disclosed or copied by Supplier unless authorized by Seaman in writing. Supplier will limit access to Seaman’s confidential information to only those Supplier employees having a need to know such information for the sole purpose of performing under this Order, and Supplier will require all such employees of Supplier having access to such information to be made aware of and be bound by the obligations under this Section. Upon Seaman’s request, Supplier shall promptly return all documents and other materials received from Seaman. Seaman shall be entitled to injunctive relief for any violation of this Section, without the posting of a bond. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Supplier at the time of disclosure without any violation of confidentiality obligations; or (c) rightfully obtained by the Supplier on a non-confidential basis from a third party.

Supplier may have access to or receive information relating to identified or identifiable individuals (“Personal Data”), including employees of Seaman, customers, suppliers, contractors, or consultants. Supplier shall keep Personal Data strictly confidential and use it (a) only within the limits authorized by Seaman and for the sole limited purpose of Supplier’s performance under the Order, and (b) in accordance with all applicable laws, rules, and regulations, including where applicable, Personal Data processing clauses.

25. Data Security.

Supplier shall develop, implement, operate, maintain, update, and monitor a data and cybersecurity program incorporating administrative, organizational, physical and technical safeguards, security awareness, and security measures designed to prevent and protect against any unauthorized access, use, destruction, processing, alteration, disclosure, or loss of Seaman confidential information and Personal Data. Upon Seaman’s request, Supplier shall submit proof of Supplier’s data and cybersecurity program to Seaman. Supplier will notify Seaman immediately of any actual or reasonably suspected breach to Supplier’s security that could potentially result in unauthorized access to Seaman’s  networks, operational technology systems, information technology systems, internet-enabled applications or devices or the data contained within any such systems or the loss or unauthorized alteration, disclosure, control, access or use of confidential information and/or Personal Data.  Supplier will provide a full description of such breach and its mitigation efforts. Supplier will promptly investigate, remediate, and mitigate the effects of such breach. Should Seaman determine in its sole discretion that other remedial measures are warranted, Supplier will, at Seaman’s request and at Supplier’s cost, undertake such remedial actions.  Seaman or its representatives shall have the right to audit Supplier’s compliance with the requirements of this Section.

26. Intellectual Property.

All work product, including, but not limited to, any idea, invention, concept, design, prototype, product configuration, process, technique, procedure, system, plan, model, program, software or code, data, specification, drawings, diagram, flow chart, documentation, or the like that are created in the course of performing under this Order, and any associated intellectual property rights therein, whether created jointly or solely by Supplier or its subcontractors, shall be the sole and exclusive property of Seaman. Supplier agrees that all works of authorship created by Supplier or its subcontractors in connection with performing under this Order and the results of the Services are “works made for hire” on behalf of Seaman as that term is used in connection with the U.S. Copyright Act.  The term “intellectual property” as used herein means all patents, patent applications, patentable subject matter, copyrights, copyrightable subject matter, work of authorship, derivative works, trademark, trade name, trade dress, trade secrets, know-how, and any other subject matter, material, or information that is considered by Seaman to be proprietary or confidential and/or that otherwise qualifies for protection under any law providing or creating intellectual property rights, including the Uniform Trade Secrets Act.  Supplier hereby assigns to Seaman ownership of all right, title, and interest in the work product and any associated intellectual property, and further agrees to cooperate with Seaman and to assist in the preparation and execution of all documents relating to any effort by or on behalf of Seaman to evidence such ownership and to apply for, obtain, maintain, transfer, or enforce any intellectual property right, at the request and expense of Seaman.

The parties acknowledge that Seaman owns or has license to use all trade secret, copyright, patent, trademark, know-how, mask work, and other intellectual property right, whether registered or unregistered of Seaman or Seaman’s customers that Seaman makes available to Supplier, or to which Supplier has access to, under this Order, and the parties agree that Supplier shall be permitted to use this intellectual property strictly and solely in conjunction with Supplier’s manufacture, supply and/or repair of any Goods for Seaman and/or the provision of Services exclusively for Seaman. Seaman retains all right, title and interest in and to its intellectual property related to this Order.

Supplier retains its intellectual property that existed and was independently created by Supplier prior to these Terms.  Supplier grants Seaman a perpetual, royalty-free, worldwide, nonexclusive, irrevocable, license to all Supplier’s intellectual property subsisting or embodied in or used in connection with the Goods and Services and work product and deliverables, with a right to grant sublicense to others, to make, have made, use, distribute, have distributed, combine with goods, have combined with goods, offer to sell, sell, repair, reconstruct or rebuild, Goods, and copy, distribute and create derivative works of copyrightable work product and deliverables.

27. Force Majeure.

Neither Seaman nor Supplier will be in default for any delay or failure to perform under this Order due to natural, political, or civil causes beyond its reasonable control and without its fault or negligence (“Force Majeure”). Notwithstanding the foregoing, the following shall not constitute a Force Majeure event for Supplier: (a) increases in Supplier’s costs, (b) material shortages or other supply chain issues, (c) Supplier’s ability to sell Goods and/or Services at a more advantageous price, (d) labor disputes or strikes at Supplier’s facilities or its subcontractor’s facilities, or, (e) pandemics or epidemics.  The party affected by a Force Majeure event shall promptly provide written notice to the other party, explaining in detail the full particulars and expected duration of the event, and shall use its best efforts to remedy the event. If Supplier’s delivery or performance under this Order is delayed by a Force Majeure event, Seaman may terminate the Order for cause pursuant to these Terms. 

28. Assignment.

Supplier shall not assign (including without limitation, by merger, asset or stock sale, change of control, operation of law, or otherwise), transfer, delegate or subcontract any of its rights or obligations under this Order, in whole or in part, without the prior written consent of Seaman. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Supplier of any of its obligations hereunder. Supplier shall cause its subcontractors to comply with these Terms and shall be liable for the acts or omissions of its subcontractors and/or for a breach of these Terms by its subcontractors, including without limitation, the confidentiality, insurance, and indemnification obligations hereunder.  Seaman may at any time assign, transfer or subcontract any or all of its rights or obligations under this Order without Supplier’s prior written consent.

29. Relationship of the Parties.

The relationship between the parties is that of independent contractors. Nothing contained in this Order 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. No relationship of exclusivity shall be construed from this Order.

30. Audit.

Seaman or its representative may enter, inspect and/or audit on reasonable notice Supplier’s plant, books and records to verify Supplier’s compliance with this Order. 

31. No Third-Party Beneficiaries.

This Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

32. Governing Law.

All matters arising out of or relating to this Order shall be governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio. The provisions of the United Nations Convention on Contracts for the International Sale of Goods are hereby excluded.

33. Submission to Jurisdiction.

Any legal suit, action or proceeding arising out of or relating to this Order shall be instituted in the federal courts of the United States of America or the courts of the State of Ohio in each case located in the State of Ohio, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

34. Remedies.

Seaman’s rights and remedies shall be cumulative and in addition to all other remedies allowed by law or in equity.  

35. Notices.

All notices, request, 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 this 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), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Order, 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.

36. Severability.

If any term or provision of this Order 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.

37. Amendments; Order of Precedence.

No amendments, subsequent terms, conditions, understandings or agreements purporting to modify these Terms will be binding unless in writing and signed by the authorized representatives of both parties. In the event of any inconsistency or conflict between these Terms, a purchase order, or other documents incorporated by reference that cannot be reconciled, the order of priority will be as follows: these Terms, followed by the purchase order and then followed by documents incorporated by reference.

38. No Advertising.

Supplier will not advertise or otherwise disclose its relationship with Seaman or Seaman’s customers without Seaman’s prior written consent, except as required by applicable law or as required to perform under this Order.

39. Survival.

Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration or completion of this Order including, but not limited to, the following provisions: Applicability, Acceptance, Setoff, Warranties, Indemnification, Seaman Property, Insurance, Compliance with Law, Anti-Corruption Compliance, Confidential Information; Personal Data, Data Security, Intellectual Property, Audit, Governing Law, Submission to Jurisdiction, and Survival.

40. Binding Effect.

This Order will be binding on Seaman and Supplier and their respective successors and any duly authorized assigns. Each party represents to the other party that it is under no contractual or other legal obligations, constraints, or disabilities that would prevent it from performing under this Order or limit its performance under this Order.

41. Construction and Interpretation.

The following rules of construction will govern the interpretation of these Terms: (a) the word “including” and words of similar import will be “including without limitation”, (b) words in the singular will be held to include the plural and vice versa and words of one gender will be held to include the other gender as the context requires, (c) the headings contained in these Terms are for reference purposes only and will not affect in any way the meaning or interpretation of these Terms, and (d) provisions will apply, when appropriate, to successive events and transactions, and Seaman and Supplier agree that the usual rules of contract construction construing ambiguities against the drafter will not apply as the parties are of equal bargaining power. Thus, all terms will be given their plain meaning.

1. Applicability.

All purchase orders for, contracts for the sale of, and all acceptances by Buyer (as defined below) of, any services (“Services”), materials, products and/or any other items (“Goods”) provided and/or sold by Seaman Corporation (collectively, herein “Goods and Services”) SHALL BE EXPRESSLY CONDITIONAL ON BUYER’S ASSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN (THESE “TERMS AND CONDITIONS”), AND NO TERMS IN ADDITION TO OR DIFFERENT FROM THOSE SET FORTH HEREIN SHALL BE BINDING ON SEAMAN CORPORATION UNLESS SPECIFICALLY AND EXPRESSLY AGREED TO IN WRITING BY SEAMAN CORPORATION. ANY ACCEPTANCE OF SEAMAN CORPORATION’S OFFER IS EXPRESSLY LIMITED TO ACCEPTANCE OF THESE TERMS AND CONDITIONS AND SEAMAN CORPORATION EXPRESSLY REJECTS AND OBJECTS TO ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY BUYER. SEAMAN CORPORATION MAY WITHOUT LIABILITY CHOOSE NOT TO ACCEPT ANY ORDER AT ITS SOLE DISCRETION. ANY PERSON OR ENTITY WHO PURCHASES GOODS AND SERVICES FROMSEAMAN CORPORATION WILL BE CONSIDERED A “BUYER” AS THAT TERM IS USED HEREIN AND WILL BE DEEMED TO HAVE ACCEPTED AND BE BOUND BY THESE TERMS AND CONDITIONS IN THEIR ENTIRETY. THESE TERMS AND CONDITIONS PREVAIL OVER ANY OF BUYER’S TERMS AND CONDITIONS OF PURCHASE REGARDLESS OF WHETHER OR WHEN BUYER HAS SUBMITTED ITS PURCHASE ORDER OR SUCH TERMS. FULFILLMENT OF BUYER’S ORDER DOES NOT CONSTITUTE ACCEPTANCE OF ANY OF BUYER’S TERMS AND CONDITIONS AND DOES NOT SERVE TO MODIFY OR AMEND THESE TERMS AND CONDITIONS. SEAMAN CORPORATION’S PERFORMANCE SHALL CONSTITUTE BUYER’S ASSENT TO THESE TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS CONSTITUTE THE ENTIRE AGREEMENT BETWEEN SEAMAN CORPORATION AND BUYER WITH RESPECT TO THE MATTERS CONTAINED HEREIN, AND SUPERSEDE ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED. IN FURTHERANCE OF THE FOREGOING, SEAMAN CORPORATION’S CLICKING OF ANY BUTTONS OR ANY SIMILAR ACTION, SUCH AS CLICKING “I AGREE” OR “CONFIRM,” WHETHER PRIOR TO, ON, OR AFTER THE DATE OF ANY ORDER, TO REGISTER SEAMAN CORPORATION AS AN AUTHORIZED VENDOR OF BUYER ON BUYER’S ONLINE PORTAL OR WEBSITE AND/OR TO UTILIZE BUYER’S ONLINE PORTAL OR WEBSITE FOR THE PLACEMENT OF ORDERS BY BUYER, IS NOT AND SHALL NOT BE DEEMED TO BE CONSTRUED AS AN AGREEMENT TO BUYER’S TERMS AND CONDITIONS, REGARDLESS OF ANY LANGUAGE TO THE CONTRARY SET FORTH ON BUYER’S ONLINE PORTALS OR WEBSITES. NO EMPLOYEE, AGENT OR REPRESENTATIVE OF SEAMAN CORPORATION HAS THE AUTHORITY TO BIND SEAMAN CORPORATION BY THE ACT OF CLICKING ANY BUTTON OR SIMILAR ACTION ON ANY OF BUYER’S ONLINE PORTALS OR WEBSITES.

 

 

2. Title and Risk of Loss.

Title and risk of loss or damage to Goods shall pass to Buyer upon tender of delivery F.O.B. Seaman Corporation’s manufacturing facility unless otherwise agreed upon by the parties in writing, except that Buyer hereby grants to Seaman Corporation a purchase money security interest in the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing, until full payment therefore has been received. Buyer agrees upon request to do all things necessary to allow Seaman Corporation to perfect and maintain said security interest and shall protect SeamanCorporation’s interest by adequately insuring the Goods in an amount of no less than the aggregate purchase price thereof against loss or damage from any cause. Buyer’s rejection of any Goods shall not shift the risk of loss or damage until the Goods are returned to Seaman Corporation, freight prepaid, pursuant to Seaman Corporation’s written authorization. Buyer shall obtain and maintain liability insurance coverage in an amount reasonably acceptable to Seaman Corporation covering the Buyer location(s) where Seaman Corporation will be performing the Services.  Upon request, Buyer shall provide Seaman Corporation with a certificate of insurance evidencing the above coverage.

 

 

3. Price, Fees, Taxes, Representation of Solvency, Approval of Credit Department, Interest Charges, No Accord and Satisfaction.

Prices for Goods quoted are F.O.B., Seaman Corporation’s manufacturing facility, and the amount of any local, state or federal taxes on the Goods and Services shall be added to the price and paid by Buyer. In consideration of the provision of the Services, Buyer shall pay the fees set forth in Seaman Corporation’s order confirmation.  Buyer shall reimburse Seaman Corporation for all reasonable travel and other expenses incurred by Seaman Corporation or its subcontractors in connection with the performance of the Services.  Buyer represents that Buyer is solvent and can and will pay for the Goods and Services sold to Buyer in accordance with the terms hereof. All shipments of Goods to or provision of Services for Buyer shall be subject to the approval of Seaman Corporation’s credit department. Seaman Corporation reserves the right before shipping any Goods to or providing any Services for Buyer to require payment therefore in advance or to require security for payment and if Buyer fails to comply with any such requirement imposed by Seaman Corporation, Seaman Corporation may terminate any contract with Buyer affected thereby. Unless otherwise expressly set forth in Seaman Corporation’s quotation, Buyer shall pay all invoiced amounts due to Seaman Corporation within thirty (30) days from the date of Seaman Corporation’s invoice.  Buyer shall make all payments hereunder by wire transfer or check and in U.S. dollars.  An interest charge the lesser of one and one-half percent (1-1/2%) per month or the maximum allowed by applicable law will be assessed by Seaman Corporation and paid by Buyer on all past due accounts. Buyer shall also be liable to Seaman Corporation for all costs incurred by Seaman Corporation in its collection of any amounts owing by Buyer which are not paid when due, including collection agency fees and expenses and reasonable attorneys’ fees and expenses, regardless whether a lawsuit is commenced against Buyer. Checks or payments, whether full or partial, received from or for the account of Buyer, regardless of writings, legends or notations upon such checks or payments, or regardless of other writings, statements or documents, shall be applied by Seaman Corporation against the amount owing by Buyer with full reservation of all Seaman Corporation’s rights and without an accord and satisfaction of Buyer’s liability.

 

 

4. Price Quotations.

All prices and fees quoted during the course of any bid-process or otherwise are based on the then current prices for raw materials, components, and labor. The market for these raw materials, components and labor may be volatile and sudden price increases may occur. Buyer acknowledges and agrees that in the event of a price increase of any raw material or component or labor which occurs through no fault of Seaman Corporation after the date of a quotation, or in the event of significant inflation, Seaman Corporation reserves the right in its sole discretion to reissue the quotation with updated, increased pricing or fees. Buyer further acknowledges and agrees that Seaman Corporation reserves this right, even if the earlier quotation had been previously accepted by Buyer. If Seaman Corporation reissues any quotation pursuant to this Section 4, if requested by Buyer, SeamanCorporation will provide Buyer with reasonable documentation evidencing the increased raw material or component or labor pricing and/or the significant inflation.

 

 

5. Inspection and Acceptance.

Buyer shall inspect all Goods upon arrival and all Services upon performance and shall notify Seaman Corporation in writing of any shortages, nonconformance with the purchase order or any other failures to conform to the applicable sales contract which are reasonably discoverable upon arrival. Any such shortages and other discoverable nonconformance not reported within thirty (30) days after receipt of the Goods or performance of the Services shall be waived by Buyer.

 

6. Delivery or Performance Schedules.

NO DELIVERY OR PERFORMANCE DATES ARE GUARANTEED. Any delivery or performance schedules which may be specified by Buyer or agreed to by Seaman Corporation shall be considered to be estimates only, and Seaman Corporation shall not incur any liability to Buyer, either directly or indirectly, and Buyer shall not cancel any purchase order based upon, Seaman Corporation’s failure to deliver Goods and/or provide the Services by the dates set forth in any such schedule.

 

7. Packaging.

Unless otherwise agreed in writing by the parties, Seaman Corporation shall package and ship the Goods using Seaman Corporation’s standard methods for packaging and shipping such Goods.  All Goods shipped in one-way containers (barrels, canisters, sacks, bags, cartons, etc.) shall become the property of Buyer and shall not be returned to Seaman Corporation but properly disposed of by Buyer. All Goods shipped in returnable containersare the property of Seaman Corporation and Buyer shall return any such containers to Seaman Corporation. Buyer shall be liable for the failure to return such containers. Goods in containers are invoiced at their net weight.

 

8. Buyer-Supplied Property; Buyer Obligations.

1. Buyer shall timely supply at its expense any patterns, tooling, designs, plans, and drawings (collectively, the “Buyer-Supplied Property”) to Seaman Corporation which are necessary and/or appropriate to produce the Goods and/or provide the Services hereunder. Seaman Corporation shall not haveany indemnification obligation to Buyer with respect to any loss or damage incurred as a result of the use of the Buyer-Supplied Property by SeamanCorporation. Further, Seaman Corporation shall not be required to maintain insurance covering the Buyer-Supplied Property and Buyer assumes all risk of loss with respect to all Buyer-Supplied Property supplied to Seaman Corporation hereunder. 
2. Buyer shall (i) cooperate with Seaman Corporation in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by Seaman Corporation, for the purposes of performing the Services; (ii) respond promptly to any request by Seaman Corporation or its subcontractors to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seaman Corporation to perform Services; (iii) provide such Buyer materials or information as Seaman Corporation may reasonably request to carry out the Services in a timely manner and ensure that such Buyer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.

 

9. Force Majeure and Delay.

1. Seaman Corporation shall not (x) be liable to Buyer for any damages resulting from, (y) be responsible to Buyer for, or (z) be deemed to have defaulted under or breached an order as a result of any failure or delay in delivery of Goods and/or performance of the Services or from any failure or delay in the performance of any other obligation of Seaman Corporation which failure or delay is due to (i) any act of God; (ii) Seaman Corporation’s being required to fulfill any government order for Goods or Services, or any order for Goods or Services placed under any allocation program (mandatory or voluntary) established pursuant to law; (iii) local labor shortage; (iv) fire, explosion, flood, earthquake, or other casualty; (v) governmental regulation, order, law, action or requirement; (vi) a shortage of raw materials, supplies, fuel, power, or transportation; (vii) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, equipment failures or a breakdown of internet service provider or communication facilities; (viii) any strike, labor dispute, difference with workers or other industrial disturbances, regardless of whether or not Seaman Corporation might be able to settle any such strike, dispute, difference or disturbance; (ix) natural disasters; (x) epidemic, pandemic, or quarantine; (xi) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riotor other civil unrest; (xii) national or regional emergency; (xiii) severe weather conditions; (xiv) embargoes or blockades in effect on or after the date of an order; or (xv) any other cause beyond Seaman Corporation’s control ((i)-(xv), “Force Majeure Event(s)”).  In the event that any Force Majeure Event continues for a period of ten (10) days, Seaman Corporation may thereafter terminate any impacted order effective immediately upon written notice. 
2. If Seaman Corporation’s performance of its obligations under an order is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seaman Corporation shall not be deemed in breach of its obligations under an order or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.

 

 

10. Confidentiality.

Any pricing, other sensitive commercial information and any other non-public information provided by Seaman Corporation to Buyer is proprietary to Seaman Corporation and shall be held in confidence by Buyer, shall only be used by Buyer in connection with sales of Goods or Services hereunder, and shall not be used for any other purposes or disclosed to third parties without Seaman Corporation’s prior written consent. Buyer shall be liable for any loss to Seaman Corporation or commercial gain by others from unauthorized use of confidential information occasioned by Buyer’s failure to comply with this provision. Upon Seaman Corporation’s request, Buyer shall promptly return all documents and other materials received from Seaman Corporation. Seaman Corporation shall be entitled to injunctive relief for any violation of this Section, without the posting of a bond.

 

11. Changes in Design or Services.

Seaman Corporation reserves the right to discontinue the manufacture or sale of any model, style or type of Goods it presently manufactures or sells, and/or Services it provides, and reserves the right to change the design or composition of Goods it presently manufactures or sells without notice toBuyer. Seaman Corporation shall incur no liability to Buyer as a result of any such discontinuance or change. Seaman Corporation shall have noobligation to furnish or install any replacements for Goods sold to Buyer prior to any such discontinuance or change.  Notwithstanding anything to the contrary contained in these Terms and Conditions, Seaman Corporation may, from time to time change the Services without the consent of Buyer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in an order.

 

12. Goods Made to Buyer’s Specifications or Off-Quality Goods.

Seaman Corporation makes NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, except as to title, with respect to Goods manufactured, compounded and/or designed to Buyer’s own specifications, or with respect to off-qualityGoods or “seconds” which Buyer has specifically requested or agreed to accept. Buyer shall release, indemnify, defend and hold Seaman Corporation, its affiliates, and their respective officers, directors, employees, and agents, harmless from and against any claim asserted against Seaman Corporation, its affiliates, or their respective officers, directors, employees, or agents, by reason of Seaman Corporation’s manufacture or sale of such Goods. Buyer shall reimburse Seaman Corporation, its affiliates, and their respective officers, directors, employees, and agents, for any losses, damages, and expenses, including attorney fees, resulting from or arising in any manner out any such claim.

 

13. Manufacturer Warranty.

Goods or components of Goods sold by Seaman Corporation may be manufactured by a third party manufacturer (“Third Party Products”) and warranted to Buyer by the third party manufacturer. Seaman Corporation will not be responsible or obligated to enforce the warranties extended by such manufacturer to Buyer, but will use commercially reasonable efforts to assist Buyer in obtaining or verifying any such warranty information.Seaman Corporation may distribute literature or sales materials of the manufacturer, but assumes no responsibility for the content of such literature or materials.  Third Party Products are not covered by the warranties in these Terms and Conditions. For the avoidance of doubt, SEAMAN CORPORATION MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCTS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

 

14. Warranty.

1. Except as described in Sections 12 and 13 above, Seaman Corporation warrants to Buyer only that for a period of thirty (30) days following shipment of such Goods to Buyer: (a) Goods described in any product-specific written warranty published and delivered to Buyer by Seaman Corporation are in accordance with and subject to such product-specific written warranty; or (b) Goods not described in any product-specific warranty published and delivered to Buyer by Seaman Corporation are in accordance with Seaman Corporation’s published specifications or Buyer’s specifications included in Buyer’s order (as applicable) at the time Seaman Corporation accepted such order therefor and that it will repair or replace, at Seaman Corporation’s sole discretion, such Goods that fail to conform to those specifications, provided notice of claim under this warranty is given within a period of not less than thirty (30) days following shipment of such Goods to Buyer. Warranty repair or replacement by Seaman Corporation shall not extend or renew the applicable warranty period. Seaman Corporation shall in no event be responsible for costs incurred by Buyer in returning Goodsto Seaman Corporation for repair or replacement. No Goods shall be returned to Seaman Corporation without the prior written consent of Seaman Corporation. The foregoing limited warranty set forth in this Section 14(a) shall be void and of no effect whatsoever in the event Buyer makes any further use of Goods after making a warranty claim with respect to such Goods or in the event the Goods shall have been damaged or abused as a result of (i) damage by machinery, equipment or any persons; (ii) exposure to excessive pressures or sources; (iii) abnormal weather conditions, floods, natural disasters, or acts of God; (iv) falling objects, explosions, or fire; (v) acts of war, terrorism, riots or civil commotion; (vi) external forces; (vii) faulty or inadequate installation; (viii) vandalism, animals or insects; (ix) alterations or repairs without the prior written consent of Seaman Corporation; (x) installation of structures, fixtures, or utilities on or through the Goods or traffic or storage of materials on the Goods; (xi) negligence or failure to properly maintain the Goods; (xii) radiation, harmful fumes or foreign substances in the atmosphere; (xiii) chemicalcontaminants not approved by Seaman Corporation; (xiv) Buyer failing to follow Seaman Corporation’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (xv) the failure of materials or components not furnished by Seaman Corporation. Final disposition of any warranty claim will be solely determined by Seaman Corporation.
2. Seaman Corporation warrants to Buyer only that that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.  Seaman Corporation shall not be liable for a breach of the warranty set forth in this Section 14(b) unless Buyer gives written notice of the defective Services, reasonably described, to Seaman Corporation within thirty (30) days after completion of the Services. Subject to foregoing notice requirement, Seaman Corporation shall, in its sole discretion, either (i) repair or re-perform such Services (or the defective part); or (ii) credit or refund the price of such Services at the pro rata contract rate.

 

 

15. Exclusion of Other Warranties.

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE IN SECTION 14, SEAMAN CORPORATION MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS AND/OR SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USE OF TRADE OR OTHERWISE. NO WARRANTIES OR REPRESENTATIONS AT ANY TIME MADE BY ANY REPRESENTATIVE OF SEAMAN CORPORATION SHALL BE EFFECTIVE TO VARY OR EXPAND THE ABOVE EXPRESS WARRANTY OR ANY OTHER TERMS HEREOF.

 

 

16. Technical Advice; Product Selection and Suitability; Indemnification.

Seaman Corporation shall not be liable to Buyer for any damages incurred as a result of any technical advice allegedly given by Seaman Corporationto Buyer in connection with the design, installation or use of the Goods. Such technical advice is accepted at Buyer’s sole risk. Seaman Corporation shall not be responsible for how the Goods are used or installed and the Good’s conformance with applicable Federal, state, local or foreign laws, rules, regulations, and ordinances. IN NO EVENT SHALL SEAMAN CORPORATION BE RESPONSIBLE FOR ANY LOSS OR DAMAGE ARISING OUT OF BUYER’S DESIGN, IMPROPER SELECTION, MISAPPLICATION OR MISUSE OF GOODS. Moreover, Buyer and its affiliates shall jointly and severally release, indemnify, defend, and hold harmless Seaman Corporation, its affiliates, and theirrespective officers, directors, employees, and agents from and against all claims for loss or damage to property or injury to or death of any person orpersons resulting from or arising in any manner out of: (a) the design, selection, installation, fabrication, sale, and/or use of the Goods by Buyer or its customers or agents, (b) the negligence or willful misconduct of Buyer or its employees or agents, or (c) a breach of these Terms and Conditions or an order hereunder by Buyer or its employees or agents.

 

 

17. Liability Limitation.

Seaman Corporation’s liability hereunder shall be limited to the obligation to repair or replace the Goods and repair or re-perform the Services pursuant to Section 14 above. SEAMAN CORPORATION’S TOTAL CUMULATIVE LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY, ANY OTHER LEGAL OR EQUITABLE THEORY OR OTHERWISE, IN ANY WAYARISING FROM OR PERTAINING TO ANY GOODS AND/OR SERVICES SOLD OR PERFORMED OR REQUIRED TO BE SOLD OR PERFORMED UNDER ANY CONTRACT OR ORDER WITH BUYER SHALL NOT IN ANY CASE EXCEED THE PURCHASE PRICE PAID BY BUYER FOR SUCH GOODS AND/OR SERVICES. IN NO EVENT SHALL SEAMAN CORPORATION HAVE ANY LIABILITY TO BUYER OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OF USE, COMMERCIAL LOSS, LOSS OF DATA OR DIMINUTION IN VALUE, LABOR COSTS, CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, OR FOR ANY LOSS OF PROFITS OR REVENUE, DOWN TIME, OR ANY OTHER CLAIM, IN EACH CASE, WHETHER IT BE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY, ANY OTHER LEGAL OR EQUITABLE THEORY OR OTHERWISE, EVEN IF SEAMAN CORPORATION HAS BEEN ADVISED OF THEPOSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IT IS EXPRESSLY AGREED THAT BUYER’S REMEDIES EXPRESSED IN THIS PARAGRAPH ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES AND SEAMAN CORPORATION’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 14.

 

18. Default.

In the event Buyer (i) defaults in payment of any sum due Seaman Corporation; (ii) is adjudicated bankrupt; or (iii) makes an assignment for the benefit of creditors, Seaman Corporation may, in addition to any and all other remedies provided herein or by law, (a) suspend in transit any shipment of the Goods and/or suspend the performance of Services; (b) decline to make further shipments and/or decline any further performance of Services; (c) postpone any further performance under the relevant sales and/or services contracts with Buyer until such default is corrected; (d) declare all amounts owed by Buyer under the other sales and/or services contracts to be due and payable immediately; and/or (e) exercise all rights of a secured party. If Seaman Corporation elects to repossess any Goods, Buyer shall permit Seaman Corporation, with or without legal process, to enter all premises where the Goods are located to remove or take possession of the same. Ten (10) days advance notice of any intended disposition of repossessed Goods shall be deemed reasonable.

 

19. Cancellation or Changes of Order.

1. No order may be withdrawn or cancelled by Buyer, nor may Buyer defer the shipment of Goods that are ready to be shipped to Buyer pursuant to an order, or delay the performance of Services, in each case, unless Seaman Corporation shall first be paid a cancellation or deferral charge of a reasonable amount acceptable to Seaman Corporation. If Buyer requests changes in an order after receipt thereof by Seaman Corporation, Buyer shall be responsible for all charges reasonably assessed by Seaman Corporation with respect to such changes.
2. In addition to any remedies that may be provided under these Terms and Conditions, Seaman Corporation may terminate an order for Goods and/or Services with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under an order; (ii) has not otherwise performed or complied with any of the terms of these Terms and Conditions; or (iii) 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.

 

 

20. Set-Offs.

Neither Buyer nor any affiliated company or assignee shall have the right to set-off any claims or disputes they might have against Seaman Corporation against any amounts which Buyer owes to Seaman Corporation for Goods sold and/or Services performed. Seaman Corporation shall have the right tocredit toward the payment of any monies that may become due Buyer hereunder any amounts which may now or hereafter be owed to Seaman Corporation.

 

21. No Protection from Claim of Infringement.

Seaman Corporation makes no express or implied representation or warranty that the delivery or use of any Goods and/or Services by Buyer or its customers or agents shall be free of the claim of any third party that the Goods and/or Services or the use thereof infringe on or violate any intellectual property right, proprietary right or any other right of any third party.

 

22. Intellectual Property.

Except as expressly set forth in this Section, nothing in these Terms and Conditions shall be construed as a grant or assignment of any license or otherright to Buyer of any of Seaman Corporation’s intellectual property rights, whether patent, trademark, trade secret, copyright, formulas, know-how, orotherwise. All derivative works, improvements and developments related to the Goods and/or the Services or the efforts of Seaman Corporation and Buyer, and all documents, work product, deliverables, and other materials delivered or prepared for Buyer as a part of performing the Services will be owned solely and exclusively by Seaman Corporation, and Buyer shall cooperate with Seaman Corporation in evidencing and confirming that ownership.    Buyer shall not modify, decode, clone, disassemble, decompile, decrypt, reverse engineer or otherwise attempt to derive or gain access to any of Seaman Corporation’s intellectual property.

 

 

23. Applicable Law.

 

1. These Terms and Conditions and any sale of Goods and/or Services by Seaman Corporation shall be determined and construed in accordancewith, and shall be governed by, the laws of the State of Ohio, excluding its conflict of law principles, and Buyer and Seaman Corporation agree tosubmit to the exclusive jurisdiction and exclusive venue of the appropriate State or Federal court located within Ohio for the purpose of resolvingany dispute or claim arising out of or in connection with these Terms and Conditions and said transaction(s).
2. In the event Buyer is an entity formed under the laws of a jurisdiction other than any State of the United States of America, Ohio law shall still govern any sale of Goods to such Buyer, excluding its conflict of law principles, and all disputes arising under any such sale shall be finally settled under the Rules of Arbitration of the International Chambers of Commerce instead of submitting to the exclusive jurisdiction of the appropriate state or federal court within Ohio. The place of arbitration shall be Cleveland, Ohio. The language to be used in the arbitral proceeding shall be English. Thearbitration panel shall consist of three arbitrators, one arbitrator to be appointed by Seaman Corporation, one arbitrator to be appointed by Buyer and the third arbitrator to be appointed in accordance with the Rules of the International Chambers of Commerce. Arbitration awards rendered shall be final and binding and shall not be subject to any form of appeal. The losing party, as determined by arbitrators, shall pay all reasonable out-of-pocket expenses (including, without limitation, reasonable attorneys’ fees) incurred by the prevailing party, as determined by the arbitrators, in connectionwith any dispute unless the arbitrators direct otherwise. Nothing shall preclude either party from seeking interim or permanent equitable or injunctive relief, or both, from any court having jurisdiction to grant the same. The pursuit of equitable or injunctive relief shall not be a waiver of the duty of the parties to pursue any remedy for monetary damages through the arbitration described in this Section. Seaman Corporation and Buyer hereby expressly exclude applicability of United Nations Convention on Contracts for the International Sale of Goods if the same would otherwise apply hereto.

 

 

 

24. STATUTE OF LIMITATIONS.

BUYER AND SEAMAN CORPORATION AGREE THAT, UNLESS OTHERWISE SPECIFIED IN THESE TERMS ANDCONDITIONS OR IN ANY APPLICABLE PRODUCT-SPECIFIC WRITTEN WARRANTY, ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF THESE TERMS AND CONDITIONS OR THE SALE OF GOODS AND/OR SERVICES HEREUNDER MUST BE BROUGHT WITHIN ONE YEAR AFTER THE DATE ON WHICH THE GOODS AND/OR SERVICES IN QUESTION WERE DELIVERED TO OR PERFORMED FOR BUYER OR THE DATE ON WHICH THE EVENT GIVING RISE TO THE ACTION OCCURRED, WHICHEVER IS EARLIER.

 

 

25. U.S. Government Contracts.

If Buyer is purchasing the Goods and/or Services for a government contract or sub-contract, Buyer shall promptly notify Seaman Corporation of that fact and of any contractual terms from the government procurement laws and regulations that Buyer is obligated to include in its contracts for such Goods and/or Services. No government procurement provisions will be included in these Terms and Conditions or any order unless agreed to in awriting signed by an authorized representative of Seaman Corporation.

 

26. Business Conduct.

Buyer represents and warrants that none of Buyer, its affiliates and/or their respective employees and agents has engaged in, nor will any of them engage in, any unlawful or unethical conduct (such as making or offering to make any improper or illegal payment or gift to an employee or official of a government, political party or political candidate, government-owned or controlled company or public international organization) to promote Seaman Corporation’s goods and/or services, including the Goods and/or Services, or to promote or facilitate the business interests of Seaman Corporation.

 

 

27. Compliance with Law.

Buyer will comply with all applicable trade and other laws, regulations and ordinances affecting the Goods and/or Services supplied by Seaman Corporation, including applicable U.S., foreign, and local laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under an order. Buyer agrees and acknowledges that certain Goods and Services may be subject to export or import control restrictions, as indicated by the export control and harmonized tariff classification on the commercial invoice, if applicable. Buyer shall be responsible for compliance with applicable export and import control restrictions. Seaman Corporation may terminate an order if any governmental authority imposes antidumping or countervailing duties or any other duties or penalties on the Goods.  Unless otherwise specified by Seaman Corporation in writing, Goods and Services are supplied by Seaman Corporation for use in the country of purchase only. Export to the Crimea region, Cuba, Iran, Syria, and North Korea (and such other countries or regions that may be designated as sanctioned or embargoed from time to time) may violate U.S. law. Buyer represents and warrants that it is not on any U.S. or other applicable restricted party lists (or owned 50% or more by one or more restricted parties) and will not directly or indirectly engage in any transaction involving the Goods and/or Services with entities or persons subject to U.S. or other applicable restrictions on transactions. Unless otherwise authorized in advance by Seaman Corporation in writing, Buyer shall not use any Goods and/or Services in activities involving nuclear, chemical, or biological weapons, or unsafeguarded nuclear materials, and shall not transfer the same to any third party that would use them in such activities.

 

28. No Exclusivity; Amendment; No Waiver; Severability; No Assignment, Survival.

In no event shall Buyer be deemed to have any exclusive distribution or other similar rights unless Buyer and Seaman Corporation execute a separate written agreement which expressly provides for such rights. These Terms and Conditions and any order shall not be amended except in a writing signed by both parties. No waiver by Seaman Corporation of any of the provisions of an order is effective unless explicitly set forth in writing and signed by Seaman Corporation. Failure, delay, or any partial exercise by either party of any right, power, or privilege available to such party hereunder shall not operate as a waiver, or preclude further exercise by such party of any other right, power, or privilege. If any provision or any portion of these Terms and Conditions or an order are construed to be illegal, invalid or unenforceable, such provision or portion thereof shall be deemed stricken and deleted from these Terms and Conditions or such order, as applicable, to the same extent and effect as if it were never incorporated herein, but all other provisions of these Terms and Conditions and such order and the remaining portion of any provision that is construed to be illegal, invalid orunenforceable in part shall continue in full force and effect. Buyer shall not assign any of its rights or delegate any of its obligations with respect to anorder of Goods and/or Services hereunder (including without limitation by or as a result of operation of law) without the prior written consent of Seaman Corporation. Any purported assignment or delegation in violation of this Section 28 shall be null and void. No assignment or delegation shall relieve Buyer of any of its obligations thereunder or hereunder. Seaman Corporation may subcontract all or any portion of its obligations with respect to the Goods or Services without Buyer’s consent and may assign any of its rights or delegate any of its obligations to any affiliate or to any entity acquiring all or substantially all of Seaman Corporation’s assets or stock, or as a result of a merger or other similar transaction by operation of law, in each case, without Buyer’s consent. These Terms and Conditions and each order are for the sole and exclusive benefit of the parties hereto and their permitted successors and assigns. Nothing expressed or referred to in these Terms and Conditions or any order will be construed to give any other entity or person any legal or equitable right, remedy or claim under or with respect to these Terms and Conditions or such order. Each party is actingas an independent contractor and not as an agent, partner, or joint venturer with the other party for any purpose. Neither party shall have any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other party. Seaman Corporation’s rights and remedies set forth in these Terms and Conditions and each order shall be in addition to all legal and equitable rights and remedies available to Seaman Corporation. These Terms and Conditions shall survive termination or cancellation of, and completion of work under, any order for Goods and/or Services hereunder.