1. APPLICABLE CONTRACT PROVISIONS.
a. “Buyer” means BlueMark Solutions, LLC, and any affiliates, subsidiaries, successors or assigns thereof. “Seller” means the person, firm or company to whom the Order is addressed. “Products” means all the products and/or services to be supplied by Seller under the Order. “Order” means the purchase order issued by Buyer for the supply of Products, which may be an oral communication or a written or electronic document, and may also include particular shipping instructions and/or other specifications required by Buyer for the Products.
b. These terms and conditions, together with the Order, constitute an offer by Buyer to purchase the Products from Seller pursuant to the terms and conditions described herein. This offer is not an acceptance or a confirmation of any previous offer or proposal from Seller, and this offer shall be deemed to be a rejection and counteroffer with respect to any previous offer or proposal from Seller. Acceptance of any shipment of the Products shall not be construed as an acceptance of any such previous offer or proposal or an acceptance of any different or additional terms proposed by Seller.
c. This offer shall become an “Agreement” upon acceptance by Seller. Seller shall be deemed to have accepted this offer by commencement of performance called for in the Order, by delivery of the Products to Buyer, by written acceptance or confirmation of this Agreement, or by any other act or communication constituting legal acceptance, whether or not any such acceptance or confirmation purports to state terms additional to or different from those stated herein. Buyer hereby expressly objects to and rejects any such additional or different provisions, and none of such provisions shall be deemed to be a part of this Agreement unless specifically agreed to in writing by Buyer.
2. SALE OF MATERIALS.
a. Seller agrees to sell, transfer and deliver the Products to Buyer for the purchase price set forth in the Order, subject to all of the covenants, terms and conditions hereof.
b. Buyer agrees to purchase the Products, subject to all of the covenants, terms and conditions hereof, and to pay Seller the purchase price set forth in the Order. Typographical and other clerical errors in the Order are subject to correction. Buyer reserves the right at any time to modify the Order upon notice to Seller. Upon such notice, Buyer and Seller shall negotiate an equitable adjustment in price and/or time of performance. Buyer shall have the right to stop all or part of the work under the Order or cancel any future delivery of any Products upon notice to Seller.
c. Seller agrees to obtain from Buyer a purchase order number for any and all purchase orders of goods and/or services. Seller further agrees it will clearly reference the purchase order number on the applicable invoice(s). Seller acknowledges that any invoice submitted to Buyer that does not clearly reference Buyer’s corresponding purchase order number may be considered invalid by Buyer and may result in delayed payment.
3. PURCHASE PRICE AND TERMS OF PAYMENT.
a. Products shipped against this Agreement shall be invoiced at the price set forth in the Order. Unless otherwise specified on the Order, payment of the purchase price shall be due seventy-days after the later of Buyer’s receipt of Seller’s correct invoice for such shipment or the date on which the Products are received by Buyer. Seller agrees that it will take no adverse action against Buyer for any invoices not paid resulting from Seller’s failure to obtain or clearly reference purchase order numbers on the applicable invoices or accurately invoice Buyer.
b. The purchase price for the Products shall include all taxes, customs duties, customs fees or other governmental charges due with respect to the Products. Buyer shall, however, pay for any taxes that it is statutorily required to pay. Seller shall provide Buyer with documentation satisfactory to Buyer that establishes Buyer’s statutory liability to pay such taxes. If Seller fails to provide such documentation, Buyer shall not be obligated to pay any such taxes.
c. Seller shall be responsible for all shipping and insurance costs, including without limitation, packing, crating, cartage and freight costs.
d. Buyer may set off any amount owing at any time from Seller to Buyer or any of its affiliates against any amount payable at any time by Buyer.
4. SHIPMENT, DELIVERY AND ACCEPTANCE
a. Seller shall deliver the Products F.O.B. to the place designated for shipment by Buyer in the Order. Seller shall follow any shipping instructions provided by Buyer and shall properly and carefully package the Products for shipment. Any loss or damage, whenever occurring, which results from Seller’s improper packaging or crating shall be borne by Seller. Notwithstanding anything in the foregoing to the contrary, title to and risk of loss of the Products shall pass to Buyer only upon receipt of the same by Buyer, and any rightful rejection or revocation of any Products by Buyer shall immediately shift the risk of loss of such Products, wherever located, to Seller. Seller agrees that any contrary provisions of Sections 2-509 and 2-510 of the Uniform Commercial Code shall not apply to this Agreement.
b. All items shipped shall be properly identified with Buyer’s purchase order number and any purchase order item number or other identification number shown. Seller accepts full responsibility for the completeness and accuracy of all transport and customs documentation (“Shipping Documents”) provided to Buyer. Seller accepts any liabilities resulting from incomplete or inaccurate data on Shipping Documents or failure to comply with any import or export requirements.
c. Notwithstanding anything herein to the contrary, Buyer shall have a reasonable opportunity to inspect the Products after the same have been delivered to Buyer’s premises. Buyer shall not be deemed to have accepted any such Products until the expiration of such reasonable time for inspection. The parties acknowledge and understand that Buyer may inspect any commercial lot of the Products consisting of numerous units of the same product by inspecting only a reasonable sampling of such units and that Buyer may revoke acceptance of any other units of such commercial lot which Buyer at a later time discovers to be defective. Upon rejection or revocation of acceptance of any Products, Seller promptly shall replace or correct, at Buyer’s option, any unsatisfactory units at Seller’s expense, including all shipping costs. Buyer’s failure to inspect or reject Products, or payment for Products, shall not relieve Seller of any of its obligations hereunder or constitute a waiver of any of Buyer’s rights hereunder.
5. WARRANTY PROVISIONS.
a. Seller hereby warrants to Buyer that, in addition to any and all express and implied warranties provided under the Uniform Commercial Code, the Products: (i) shall be provided in a competent, professional manner and in accordance with the highest standards and best practices of Seller’s industry; (ii) shall be free from defects in materials and workmanship, and shall be merchantable and fit for their particular purpose; (iii) shall conform to and perform in accordance with all specifications, drawings, samples and other requirements referred to in the Order and provided by Seller; (iv) when shipped shall be free from all liens, security interests and encumbrances of any type whatsoever; and (v) shall be manufactured, produced, labeled, furnished and delivered to Buyer in full and complete compliance with all applicable laws and regulations.
b. Seller shall give Buyer reasonable advance written notice of any production change related to the Products, including but not limited to any change in the manufacturing process, formulation, raw materials or production location. For any change that could affect performance of the Products, Seller shall complete any reasonable qualification processes of Buyer and address Buyer’s concerns about the change.
a. Seller shall be deemed to be in default hereunder if it violates any of the terms hereof or fails timely to perform any of its covenants, duties or obligations hereunder, or if it performs or fails to perform any other act, whether pursuant to this Agreement or otherwise, which gives Buyer reasonable grounds to feel insecure with respect to Seller’s future performance hereunder.
b. Upon default by Seller hereunder, Buyer may exercise any or all of the following rights and remedies, in addition to such other rights and remedies as may be provided hereunder or under applicable law: (i) reject or revoke acceptance of any or all of the Products, whether or not such Products are defective and whether or not the condition of delivery thereof otherwise relates to, pertains to, concerns or gives rise to such event of default; and/or (ii) terminate this Agreement without any obligation whatsoever with respect to Products not yet delivered to Buyer at the time of such termination. Buyer’s decision to pursue any one such remedy shall not be deemed to be an election not to pursue any other remedy at the same time or at any other time.
a. Seller agrees to indemnify and hold Buyer harmless from and against any and all liabilities, costs, losses or expenses, including reasonable attorneys’ fees, incurred or suffered by Buyer as a result of or in connection with Seller’s breach of any of its obligations hereunder.
b. Seller agrees to indemnify and hold Buyer harmless from and in respect of any damages, losses or expenses which Buyer may suffer or incur (including reasonable attorneys’ fees) arising out of, relating to or concerning any claim, action or allegation that any of the Products (or the use of same in an intended manner) infringes any patent or intellectual property rights claimed by any third-party; provided that Buyer shall notify Seller in writing of any such claim, act or allegation promptly after learning of the same and shall assist and cooperate in the defense or settlement thereof. Such defense or settlement shall be at Seller’s sole expense, and Seller shall pay all damages and costs finally awarded against Buyer as a result of any such suit or proceeding.
a. For the duration of this Agreement and for three years following its completion or termination, Seller shall secure and maintain in effect, at its own expense, by insurance companies rated A-VII or better by A.M. Best, at least the following insurance coverage that will fully protect both Seller and Buyer: commercial general liability (including product liability and completed operations liability) in a sum no less than $1 million per occurrence, automobile liability with a minimum combined single limit of $1 million per occurrence, worker’s compensation in an amount no less than the applicable statutory minimum requirement and employer’s liability in an amount no less than $1 million per occurrence. The insurance Seller is required to maintain under this Agreement shall: (i) name Buyer and its affiliates, directors, officers, employees and agents (“Buyer Parties”) as additional insureds, (ii) be endorsed to provide a waiver of subrogation in favor of Buyer Parties, and (iii) be primary over any other insurance available to Buyer or any self-insurance program of Buyer.
b. Prior to delivery of any Products, Seller will provide to Buyer a certificate(s) of insurance evidencing that Seller maintains insurance in accordance with the foregoing requirements. Buyer shall have no obligation to examine such certificate(s) or to advise Seller in the event the insurance is not in compliance with Buyer’s requirements. Buyer’s receipt and/or acceptance of a certificate(s) not in compliance with Buyer’s requirements shall not be construed as a waiver of such insurance requirements, which constitute a material condition to this Agreement. Further, the insurance coverage and amounts to be maintained are not intended to and shall not in any manner limit or qualify the liabilities and obligations of Seller.
9. GENERAL PROVISIONS.
a. In order to assess Seller’s performance under and compliance with the Agreement, including but not limited to Seller’s compliance with respect to pricing, specifications, warranties and certifications, Buyer and/or its designated representative(s) shall have the right upon reasonable notice to Seller to access and audit Seller’s facilities, books, records, goods and services related to the Agreement and Products. The costs of any such audit will be paid by Buyer, unless the audit reveals any non-conformance by Seller, in which case Seller will promptly reimburse Buyer for the reasonable costs of the audit.
b. Seller shall furnish, at Seller’s expense, all labor, materials, equipment, transportation, facilities and other items that are necessary to meet the Order requirements. Time is of the essence in Seller’s performance. Seller must immediately notify Buyer whenever Seller has knowledge of an actual or potential delay to the timely performance of the Order. In the event of Seller’s refusal or failure to meet the delivery date(s) specified in the Order, Buyer may, without limiting its other rights and remedies, direct expedited routing and charge excess costs incurred thereby to Seller, or cancel all or part of the Order.
c. This Agreement shall constitute the complete understanding and contract between Seller and Buyer with respect to the subject matter hereof and supersedes any prior written or oral understandings with regard thereto. No purported amendment, modification or waiver of any provision of the Agreement shall be binding on Buyer unless set forth in a written document signed by an authorized representative of Buyer. Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document and shall not be deemed a waiver of any other term of the Agreement between Seller and Buyer or of the same circumstance or event upon any recurrence thereof.
d. Seller may not assign or subcontract any of its rights or obligations without Buyer’s prior written consent. Seller is responsible for the performance or non-performance of any subcontractor and will indemnify, defend and hold harmless Buyer from and against all claims, actions, losses, damages, costs and expenses (including reasonable attorneys’ fees) arising from any subcontractor’s acts or omissions.
e. If any provision hereof is held to be unenforceable by the final order of any court of competent jurisdiction, such provision shall be severed here from and shall not affect the interpretation or enforce-ability of remaining provisions hereof.
f. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Oklahoma, without reference to any conflicts of law principles. Seller hereby consents to the exclusive jurisdiction and venue of the Federal and state courts located in the County of Tulsa, State of Oklahoma as the exclusive forum for the resolution of disputes.
g. In connection with the Order and/or performance hereunder, Seller and Buyer (as to information disclosed, the "Disclosing Party") may each disclose Confidential Information to the other party hereto (the "Receiving Party"). "Confidential Information" shall mean all information related to the business, products, or services of the Disclosing Party (including but not limited to Seller's Products/Services) that is not generally known to the public, provided that the obligations of this paragraph shall not apply as to any portion of the Confidential Information which: (i) is or becomes generally available to the public other than as a result of disclosure by the Receiving Party, its representatives or its affiliates, or (ii) has been or is subsequently independently developed by the Receiving Party, its representatives or affiliates, without reference to the Confidential Information, or (iii) is required to be disclosed by law or valid legal process provided that the Receiving Party who intends to make such disclosure shall promptly notify the Disclosing Party in advance of such disclosure and reasonably cooperate in attempts to maintain the confidentiality of the Confidential Information. The Receiving Party agrees, except as otherwise required by law: (i) to use the Confidential Information only as the Disclosing Party intended it to be used by the Receiving Party in connection with providing or receiving the Product/Service, and (ii) to take reasonable measures to prevent disclosure of the Confidential Information, except disclosure to its employees to the extent necessary to facilitate providing or receiving Products/Services. Upon the Disclosing Party's request, the Receiving Party shall destroy or return to Disclosing Party all copies of Confidential Information. If either party or any of their respective affiliates or representatives is required or requested by subpoena, interrogatories, or similar legal process to disclose any Confidential Information, such party agrees to provide the Disclosing Party with prompt written notice of such request, so that the Disclosing Party may seek an appropriate protective order or waive compliance by the Receiving Party with the provisions herein. It is expressly agreed that this section shall survive any expiration or termination of this Agreement.
h. The title to any tangible property, including but not limited to material, goods, equipment, apparatus, documents, and literary property (e.g., drawings, manuscripts, artwork, motion pictures, video programs, and computer software), provided to Seller by Buyer or produced by Seller in submitting a bid or estimate or in carrying out an Order for Buyer shall be vested in Buyer, and Seller agrees to return or deliver such tangible property to Buyer upon request. Seller hereby expressly assigns to Buyer all copyrights in and to any literary property produced by Seller for Buyer.
i. In the event the Agreement relates to consulting services, the Seller shall be considered a consultant and every work or idea created or acquired by or on behalf of the Seller for Buyer (past and future) shall be considered a “work made for hire” on behalf of the Buyer. It is the intent of the parties that Buyer shall have unrestricted ownership in and to all such works and to any derivative works, without further compensation of any kind to the Seller. To the extent that the law would fail to automatically vest in Buyer the full unrestricted ownership of all such works under “work for hire” treatment or similar concepts, the Seller hereby assigns to Buyer the copyright and any and all other rights in and to every such work including any derivatives, and the Seller waives any claim of moral right that it may have in or in connection with such work.
j. Buyer and Seller acknowledge that they are each independent parties and neither shall be deemed an agent, employee or representative of the other or have authority to bind the other in any manner whatsoever.
k. During the term of this Agreement and one year following completion of final delivery of the Products, Seller agrees that it will not, without Buyer’s prior written consent, directly, or indirectly through third-parties, employ, solicit, engage or retain the services of Buyer’s employees or personnel.
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